Madras High Court
A. Innasimuthu vs The Secretary To Government on 11 November, 2021
W.P(MD) No.10371 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.11.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S. SRIMATHY
W.P(MD) No.10371 of 2017 and
WMP(MD).No.7948 of 2017
A. Innasimuthu :Petitioner
.vs.
1.The Secretary to Government,
Highways and Minor Ports Department,
Secretariat, Chennai -9.
2.The Director General,
Highways Department,
Chennai -5.
3.The Divisional Engineer,
Construction of Maintenance,
Pudukkottai. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of to
issue a Writ of Certiorarified Mandamus calling for the records connected
with the impugned order passed by the 1st respondent in G.O.(D).No.200
Highways and Minor Ports (HLI) Department, dated 23.09.2016 which was
communicated by the second respondent in Memo.No.6644/Kammukam
2(1)/1995-185, dated 29.09.2016 and quash the same and consequently,
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W.P(MD) No.10371 of 2017
direct the respondents to treat the period of his suspension as duty with all
other attendant monetary and other service benefits and settle his retirement
benefits with interest for the belated payment of his duty pay and other
retirement benefits.
For Petitioner :Mr. S. Govindan
For respondents : Mr. R. Ragavendran
Government Advocate (Civil Side)
ORDER
--------------
This Writ Petition has been filed to quash the impugned order
passed by the 1st respondent in G.O.(D).No.200 Highways and Minor Ports
(HLI) Department, dated 23.09.2016, which was communicated by the
second respondent in Memo.No.6644/Kammukam 2(1)/1995-185, dated
29.09.2016 and consequently, direct the respondents to treat the period of
his suspension as duty with all other attendant, monetary and other service
benefits and settle his retirement benefits with interest for the belated
payment of his duty pay and other retirement benefits.
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W.P(MD) No.10371 of 2017
2. The petitioner was appointed as Overseer on 02.09.1980 in
Madurai Highways Division. Consequent to the formation of separate
Engineering Wing in the Rural Development Department, the post of
Panchayat Union Overseers was transferred to Rural Development
Department and all the Overseers were transferred to the Rural Development
Department. The petitioner was transferred to Bodinayakanur Panchayat
Union on 24.09.1980 and thereafter, transferred to various places finally on
17.05.1995 transferred to the Tiruvarankulam Panchayat Union as Union
Overseer.
3. On 12.07.1995 the petitioner was arrested by the Vigilance
and Anti-corruption officials. The allegation is that one Devaraj has paid
Bribe to one Mr. Arangan, Road Inspector for sharing the amount with the
petitioner and with one Mr.N. Seenivasan, Union Engineer. The petitioner
claims that the said Devaraj with the vengeance has preferred this complaint
since the petitioner has submitted a report to the Block Development Officer
on 02.05.1995 stating that the said Devaraj has not constructed “well” in his
field under Jeevandhara Scheme as per the terms and conditions. Based on
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W.P(MD) No.10371 of 2017
the report, the said Devaraj was directed to complete the Well as per the
scheme. Since the said Devaraj had to incurred additional expenses to
complete the construction as per Scheme with the vengeance he has preferred
this complaint.
4. The petitioner faced a trial in Spl.C.C.No.1 of 1997, on the
file of the Special Court – cum - Additional District and Sessions Court -
Cum – Chief Judicial Magistrate, Pudukkottai and a punishment of two years
imprisonment with a fine of Rs.2,000/- was imposed against the said
Arangan and the petitioner. But the third accused Seenivasan was acquitted.
The petitioner and the said Arangan had preferred a Criminal Appeal Nos.
327 and 349 of 2000 on the file of this Court and this Court vide order, dated
23.11.2009 has acquitted the petitioner and the said Arangan. In the
Criminal Appeal an interim order of suspension of sentence was passed vide
order, dated 12.04.2000.
5. In the meanwhile, based on the Trial Court Judgment, a show
cause notice, dated 19.06.2000 was issued asking why the petitioner should
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W.P(MD) No.10371 of 2017
not be terminated from service in view of the conviction. The petitioner
claims after suspension based on the trap case, the connected records relating
to the petitioner were seized by the vigilance office and hence challenged the
show cause notice before the Tribunal in O.A.No.5315 of 2000 and obtained
stay vide order, 27.07.2000.
6. The petitioner also claims the petitioner was paid subsistence
allowance from 1995 until conviction in the year 2000 and in spite of
acquittal by the High Court, the respondents have not paid subsistence
allowance thereafter. The petitioner also claims for revocation of the
prolonged suspension from 1995 onwards and to treat the same as duty
period based on the acquittal in the criminal case and in view of the stay
orders granted by the Tribunal to the show cause notice.
7. The petitioner also alleges that apart from the earlier vigilance
case, the first respondent, who is a review authority has framed four charges
vide order, dated 23.12.1996 against the petitioner and the petitioner
submitted explanation on 28.04.1997. These four charges are nothing to do
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W.P(MD) No.10371 of 2017
with the earlier vigilance case.
8. The allegation in these charges are that the petitioner has
preferred bill in violation of rules for payment relating to the construction of
slab culvert at the entrance of the panchayat school, the petitioner failed to
prepare bill in time for work to the improvement to Adi Dravidar Colony
burial ground road, the petitioner failed to measure the work relating to
construction of slab culvert in car street, Kovilur and the petitioner failed to
maintain absolute integrity and devotion to duty and have violated the Rule
20 of the Tamil Nadu Government Servant Conduct Rules.
9. The petitioner has submitted a detailed explanation. For the 1st
charge the petitioner has stated this work was executed prior to the transfer
of the petitioner to the present place and accepting this the 1st charge held to
be not proved. For the 2nd charge the petitioner has stated that the work was
completed on 01.07.1995 and verified by the Union engineer on 04.07.1995
and bill was submitted on 04.07.1995 and there was no delay. Accepting this
the enquiry officer has held “as there is not too much of delay, the meagre of
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W.P(MD) No.10371 of 2017
3 days can be admitted and charge stands not proved”. But the appointing
authority has held 3 days delay is not admissible, Enquiry Officer suggestion
is not acceptable and proceed to punish for this charge.
10. The 3rd charge is that petitioner failed to measure the work
and allowed the work for completion without recording the measurements
and the petitioner has explained that it is only departure of procedure and
there is no financial loss to the government. The Enquiry Officer has
declined to accept the explanation and has held that in M. Book the petitioner
has recorded the measurements without his signatures and the measurements
recorded by him shows that the worked was allowed to be completed without
any measurements and check measurements and held the charge is proved.
As far as 4th charge is concerned it is only consequential charge of 1 to 3
charges.
11. The petitioner claims without considering the explanation,
the respondents had decided to conduct the enquiry after a lapse of nearly
two years (charge memo was issued on 23.12.1996). The enquiry officer was
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W.P(MD) No.10371 of 2017
appointed on 19.12.1998 and enquiry was conducted after a lapse of 1 ½
years i.e., on 30.06.1999. But the Enquiry Officer without considering the
detailed explanation had submitted his findings on 30.07.1999 and held
charges 1 and 2 are not proved and charges 3 and 4 are proved. Even though
the enquiry office submitted his findings on 30.07.1999, the final orders of
the disciplinary proceedings was passed vide order, dated 23.09.2016 i.e.,
after a lapse of 17 years. That too after the lapse of 3 years of
superannuation, wherein the petitioner had attained superannuation on
31.08.2013.
12. The petitioner had submitted a representation, dated
10.03.2010 for posting the petitioner in service. The respondent had obtained
Government Pleader's opinion and it was opined that since the employee got
orders from High Court there is no bar for giving him employment. In spite
of the same, the respondent has not issued any revocation of suspension
order. Hence the petitioner filed W.P. (MD) No. 5072 / 2013 to consider the
representation dated 31.12.2012 and this Court has directed the respondents
to consider the representation within a period of 4 weeks. Based on the order
of this Court, the respondents considered the representation and revoked the
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W.P(MD) No.10371 of 2017
suspension and was given a posting on 16.12.2013 as Junior Draughting
Officer and the petitioner joined the duty on 24.12.2013 and served for about
8 months and the petitioner was allowed to retire on superannuation on
31.08.2014.
13. Heard the learned Counsel for the petitioner and the learned
Government Advocate (Civil Side) appearing for the respondents.
14. It is seen from the records that the petitioner was convicted in a
vigilance case by the Trial Court, challenged in the criminal appeal and
thereafter acquitted in the criminal appeal. The show cause notice was issued
asking why the punishment of removal from service cannot be
imposed after the conviction by the Trial Court and the same was stayed by
Tribunal. Since the petitioner was acquitted in the criminal appeal and as on
day disciplinary proceedings are not concluded since there was stay by the
Tribunal. It is seen that the stay for show cause notice was granted on
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W.P(MD) No.10371 of 2017
27.07.2000, the petitioner was acquitted in the Criminal Appeal on
23.11.2009, the petitioner was allowed to join the service on 23.12.2013,
then was allowed to retire on 31.08.2014. Since the petitioner was acquitted
in the appeal and then was allowed to join the service, then the petitioner
would be entitled to the service and monetary benefits. Therefore, this Court
directs the respondents to grant the service and monetary benefits within a
period of 4 weeks.
15. As far as the charge memo dated 23.12.1996 is concerned
the 1st charge is not proved. The 2nd charge the government has not accepted
the Enquiry Officer report, deviated from the finding and has proceeded to
punish. The reasoning given is that the enquiry officer has held that the delay
is meagre. It is seen that the enquiry officer alone has stated the delay is
meagre, but, the delinquent has claimed that there is no delay. It is seen that
the delinquent has stated that after verification the bill was submitted. It is
seen from the records that the work was completed on 01.04.1995, Union
Engineer has verified on 04.04.1995 and bill was submitted on the same day
i.e. on 04.04.1995. Therefore this Court holds that the government is
incorrect to state that there was delay, even if it delay then the same is
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W.P(MD) No.10371 of 2017
meagre and the Enquiry Officer is right is stating so. As far as the 3rd charge
is concerned the delinquent has accepted there was procedural lapse and the
Enquiry Officer has held the charge is proved. As far as the 4 th charge is
concerned it is the consequential of the charges 1 to 3. In effect only one
charge is proved and other two charges are not proved. Therefore, this Court
holds that if the punishment is reduced that would meet the ends of justice.
Therefore, the punishment of cut in the pension at the rate of Rs.500/-
(Rupees Five Hundred only) per month for a period of one year is reduced to
Rs.200/- (Rupees Two Hundred only) per month for a period of one year.
16. . In the result, the following order is passed:
i. The G.O. (D) No. 200 is modified, the punishment of cut
in the pension at the rate of Rs.500/- (Rupees Five
Hundred only) per month for a period of one year is
reduced to Rs.200/- (Rupees Two Hundred only) per
month for a period of one year.
ii. The respondents are directed to regularize the period of
suspension in accordance to law.
iii. The respondents are directed to grant all service benefits
and monetary benefits
iv. The respondents are directed to settle the retirement
benefits with interest, where ever statutory interest are
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W.P(MD) No.10371 of 2017
applicable.
16. With the above direction, the Writ Petition is disposed of.
No costs. Consequently, the connected Miscellaneous Petition is closed.
11.11.2021
Index:Yes/No
Internet:Yes/No
trp
To
1.The Secretary to Government,
Highways and Minor Ports Department,
Secretariat, Chennai -9.
2.The Director General,
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W.P(MD) No.10371 of 2017
Highways Department, Chennai -5.
3.The Divisional Engineer,
Construction of Maintenance, Pudukkottai.
S. SRIMATHY, J.,
trp
https://www.mhc.tn.gov.in/judis
W.P(MD) No.10371 of 2017
W.P(MD) No.10371 of 2017 and
WMP(MD).No.7948 of 2017
11.11.2021
https://www.mhc.tn.gov.in/judis
