Madras High Court
P.Stanley Paulraj vs The State Of Tamilnadu Rep. By Its on 24 November, 2021
W.P.No.34089, 34090 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 24.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.34089, 34090 of 2012 and
M.P.No.1 &2 of 2012 and
M.P.No.1 of 2013
P.Stanley Paulraj,
Assistant Director (PWD),
Hydrology Sub-Division (IHH),
Poondi 602 023, Thiruvallur District. ... Petitioner in both
writ petitions
Vs.
1. The State of Tamilnadu rep. by its
Secretary to Government,
Public Works Department,
Secretariat, Chennai 600 009.
2. The Engineer-in Chief (Buildings)
and Chief Engineer (Buildings),
Chennai Region and Chief Engineer (General),
Public Works Department, Chepauk,
Chennai 600 005. ... Respondents in
both writ petitions
Prayer in W.P.No.34089 of 2012: Writ petition filed under Section 226
of the Constitution of India seeking to issue a Writ of Certiorarified
Mandmus , to call for the records connected with the charge memo
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W.P.No.34089, 34090 of 2012
No.C11(2)/1161/2012-2 dated 24.08.2012 of the second respondent
and quash the same and direct the respondents to consider the name of
the petitioner for promotion to the post of Executive Engineer on par
with junior and consequently promote the petitioner as Superintending
Engineer with all benefits and pass orders.
Prayer in W.P.No.34090 of 2012: Writ petition filed under Section 226
of the Constitution of India seeking to issue a Writ of Certiorarified
Mandmus , to call for the records connected with the charge memo
No.C11(2)/1161/2012-1 dated 24.08.2012 of the second respondent
and quash the same and direct the respondents to consider the name of
the petitioner for promotion to the post of Executive Engineer on par
with junior and consequently promote the petitioner as Superintending
Engineer with all benefits and pass orders.
In both writ petitions
For petitioner : Mr.G.Elanchezhiyan
For respondents : Mr.T.Arunkumar, Addl.Govt. Pleader
for R1 to R2
COMMON ORDER
Both the writ petitions have been filed to quash the two charge
memos dated 24.08.2012 issued by the second respondent and direct
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the respondents to consider the name of the petitioner for promotion to
the post of Executive Engineer on par with the Juniors and
consequently promote the petitioner as Superintending Engineer with
all benefits and pass orders.
2. Since the parties in both the writ petitions are one and the
same; and the reliefs sought for are connected to each other, this court
is inclined to pass common order.
3. The case of the petitioner in brief:
The writ petitioner was initially appointed as Assistant Engineer
on 30.10.1979 and thereafter, he was relieved from service on
15.05.1987. Subsequently, he was given re-posting in the year 1991
and he was promoted as Assistant Director (AEE), Hydrology Sub
Division, Poondi. The writ petitioner made a request before the
respondents to consider for further promotion to the post of Executive
Engineer and Superintending Engineer. Since it was not considered, he
filed a writ petition in W.P.No.10828 of 2012 seeking direction to the
respondents to consider the claims of the petitioner for promotion as
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W.P.No.34089, 34090 of 2012
Executive Engineer, on par with his Juniors with effect from the year
2006 and with consequential promotion as Superintending Engineer on
par his Juniors with all benefits. This court by order dated 13.06.2012,
directed the respondents to consider the petitioner's representation.
3.1. But, in order to deny the right of the petitioner, the
respondents issued two charge memos i.e. one is under Rule 17(a) and
another is under Rule 17(b) of Tamil Nadu Civil Service (Disciplinary
and Appeal) Rules 1955, both dated 24.08.2012, with regard to the
shortage of Cement bags and Steel.
3.2. The contention of the petitioner is that after receiving the
charge memos, he submitted an application on 24.09.2012 to extend
the time to submit his explanation and also to furnish all the relevant
documents. Thereafter, he submitted his explanation to the two charge
memos on 04.10.2012 to the respondent. However, there is no
progress on the disciplinary proceedings.
3.3. The primordial contentions of the petitioner is that the above
said occurrence happened during the period from 07.07.1994 to
25.04.1997, but the charges have been framed against the petitioner
only on 24.08.2012, which is time barred. On that score, the above
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W.P.No.34089, 34090 of 2012
charge memos are liable to be quashed.
4. The contentions raised in the counter affidavit in brief:
The petitioner was working as Assistant Engineer, Public works
Department, Nagercoil from 7.7.1994 to 25.04.1997 and he was
transferred to Coastal Process Section, Kanyakumari on 25.04.1997.
The writ petitioner had filed O.A.No.5215 of 1997 before the Tamil
Nadu Administrative Tribunal against the order of recovery dated
12.04.1997 with regard to the shortage of cement. Consequent on the
abolition of the above Tribunal, the case was transferred to the file of
High Court in W.P.No.31454 of 2006 and this court vide order dated
23.03.2009, had dismissed the writ petition. Against which, the
petitioner had filed an Appeal in W.A.No.582/2009 before the Division
Bench, and vide order dated 15.07.2010, this court allowed the appeal
and set aside the order of recovery. However, in the order of appeal, it
was observed that, it would be open to the respondent to proceed
against the petitioner, as per rules in accordance with law, if so advised.
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W.P.No.34089, 34090 of 2012
4.1. Based on the above order, the order of recovery was
cancelled. Thereafter, the petitioner was directed to appear before the
Executive Engineer on 24.09.2010, with relevant documents to
reconcile the difference in account of materials. After reconciling, the
quantity of 74 bags of cement worth Rs.10,630/- was found to be short.
As far as Steel was concerned, he did not reconcile the materials in
account at all. As such, shortage of steel was worth to Rs.74,382/-.
Hence charges framed under Section 17(a) and 17(b) of Tamil Nadu
Civil Services (Discipline and Appeal) Rules with regard to the
shortage of Cement and Steel respectively.
4.2. The documents required by the petitioner were furnished to
him on 01.10.2012 to enable him to submit his explanation to the
charges. He submitted his representation dated 24.08.2012 to the
respondent. Therefore, the contention of the petitioner that without
furnishing the documents, the respondents are attempting to conduct
enquiry is not correct.
4.3. Earlier, the writ petitioner filed W.P.No.10828 of 2012 and
obtained direction to consider his claim for promotion as Executive
Engineer on par with his juniors from the year 2006. As the persistent
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W.P.No.34089, 34090 of 2012
attitude of the petitioner in not heeding to the instructions to remit the
amount of Rs.74,382/- towards the value of shortage of steel continued
to prevail, there was no other option, but to proceed against him under
the Rule 17(b) of the Tamil Nadu Civil Services (Discipline and
Appeal) Rules. Consequently, his claim for promotion to the post of
Executive Engineer and Superintending Engineer could not be
entertained, until finalization of the disciplinary proceedings.
4.4. As regards the limitation period is concerned, it operates
only in the Tamil Nadu Pension Rules 1978. As far as the serving
personnel are concerned, they are liable to be proceeded till the date of
their retirement for the omissions and commissions committed by them
at any point of time, during their service. Therefore, there is nothing
wrong in pursuing action in the charge memo dated 24.08.2012 for the
occurrences that took place from 07.07.1994 to 25.04.1997. Hence, this
writ petition is liable to be dismissed.
5. The learned counsel appearing for the petitioner relied upon
the G.O.Ms.No.2201 dated 9.11.1982 issued by the Government of
Tamil Nadu, wherein, direction has been given, by fixing time limit, for
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W.P.No.34089, 34090 of 2012
pointing out the discrepancies, shortages noticed in transfer papers of
Pubic Works Department Section Officers. Therefore, inview of the
above Government Order, the impugned orders are time barred and the
same are liable to be quashed.
6. To support his contentions, he further relied upon the
decisions of this court reported in 2005(4) CTC 403 (Mahadevan P.V.
Vs. M.D.Tamilnadu Housing Board); 2006 SCC (L & S) 919
(M.R.Bijilani Vs. Union of India); 2006(2) CTC 635 (M.Elangovan
Vs. Trichy District Central Co-operative Bank Ltd. rep. by its
General Manager, Trichy) and submitted that if there is an inordinate
delay in issuing the charges and conclude the proceedings on the part
of the respondent, then the impugned charges are liable to be quashed.
Hence, he prayed to dismiss the impugned charges and direct the
respondents to consider the name of the petitioner for further
promotion as Executive Engineer and Superintending Engineer.
7. Per contra, it is contended by the learned counsel appearing
for the respondents that with regard to the shortages of Steel, the
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W.P.No.34089, 34090 of 2012
petitioner has not heeded to the instructions to remit the amount of
Rs.74,382/-. Hence, action was proceeded against him by framing
charges under 17(b) of Tamil Nadu Civil Services (Discipline and
Appeal) Rules and inview of the same, his name was not included in
the panel for promotion. He further contended that, the period of
limitation operates only in the Tamil Nadu Pension Rules 1978 and as
far as the serving personnel are concerned, they are liable to be
proceeded till the date of their retirement for the omissions and
commissions committed by them at any point of time during their
service. Hence, the writ petitions are liable to be dismissed.
8. Heard the rival submissions made by the learned counsels to
both side and I have perused the materials on record.
9. The respondents have framed the following charges by issuing
two charge memos dated 24.08.2012 as against the petitioner.
I. Charge framed under Rule 17(a) of Tamil Nadu
Civil SErvices (Discipline and Appeal) Rules:
He (P.Stanley Paulraj, Assistant Executive Engineer,
PWD) had failed to maintain the stores properly under his direct
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W.P.No.34089, 34090 of 2012
control and also failed to properly maintain the accounts of
stores with an intention of malpractices in the accounting of
cement without any relevance to the Bin Card entires and Day
Book entries which resulted in loss to the Government to a tune
of Rs.10,630/- (and 10% storage charges and 5% storage charges
thereon) being the cost of 74 bages of cement and thus violated
the Para 304 of Tamil Nadu Public Works “D” Code and Article
273 of Tamil Nadu Financial Code Vol.I.
II. Charges framed under Rule 17(b) of Tamil Nadu
Civil Services (Discipline & Appeal) Rules.
Charge No.1
That Thiru P.Stanley Paulraj, Assistant Executive
Engineer, PWD in his former capacity as the Assistant Engineer,
PWD Buildings Construction Sub Division, Nagercoil on his
relief on transfer, had failed t hand over his section charges to his
successor in a complete shape in gross violation of para 304 of
Tamil Nadu Public Works "D" code and para 340 of Tamil nadu
Public Works "A" code.
Charge No.2
That Thiru P.Stanley Paulraj, in his former capacity as the
Assistant Enginer of Section I, Buildings Construction Sub
Division, Nagercoil in gross violation of Article 273 of Tamil
Nadu Financial Code Vol.I, had failed to safeguard the
Government materials i.e. 3750 kg. Steel worth Rs.74,382/- thus
causing loss to the Government by not handing over the
materials.
Charge No.3
That Thiru P.Stanley Paulraj, Assistant Executive
Engineer, by committing the said irregularities had failed to
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W.P.No.34089, 34090 of 2012
maintain absolute integrity and devotion to duty as warranted
under Rule 20 of Tamil Nadu Government Servants Conduct
Rule 1973.
10. The Primordial submission of the counsel for the petitioner is
that, the charge memos are time barred. It is not disputed by the
respondents that the impugned charge memos were issued with regard
to shortage of Cement bags and Steel for a period from 07.07.1994 to
25.04.1997 and the charge memos were issued on 24.08.2012. Further,
it is pertinent to extract the relevant portion of the decision rendered by
the Honourable Supreme Court in P.V.Mahadevan Vs. M.D.Tamil
Nadu Housing Board reported in 2005(4) CTC, which reads thus:
10. The very same ground has been specifically raised in
this appeal before this court wherein, it is stated that the delay of
more than 10 years in initiating the disciplinary proceedings by
issuance of charge memo would render the departmental
proceedings vitiated and that in the absence of any explanation
for the inordinate delay in initiating such proceedings of issuance
of charge memo would justify the prayer for quashing the
proceedings as made in the writ petition.
10. ...
11. ...
12. ..
13. ...
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W.P.No.34089, 34090 of 2012
14. Under the circumstances, weare of the opinion that
allowing the respondent to proceed further with the departmental
proceedings at this distance of time will be very prejudicial to the
appellant. Keeping a higher Government official under charges
of corruption and dispute integrity would cause unbearable
mental agony and distress to the officer concerned. The
protracted disciplinary enquiry against a government employee
should, therefore, be avoided ot only in the interests of the
government employee, but in public interest and also in the
interest of inspiring confidence in the minds of the government
employees. At this stage, it is necessary to draw the curtain and
to put an end to the enquiry. The appellant had already suffered
enough and more on account of the disciplinary proceedings. As
a matter of fact, the mental agony and sufferings of the appellant
due to the protracted disciplinary proceedings would be much
more than the punishment. For the mistakes committed by the
department in the procedure for initiating the disciplinary
proceedings, the appellant should not be made to suffer.
15. We, therefore, have no hesitation to quash the charge
memo issued against the appellant. The appeal is allowed. The
appellant will be entitled to all the retiral benefits in accordance
with law. The retrial benefits shall be disbursed within three
months from this date. No costs.
11. Further, the Honourable Supreme Court, following the
Judgment in P.V. Mahadevan Vs. Managing Director, Tamil Nadu
Housing Board, reported in 2005(4) CTC, in its decision in Ranjeet
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W.P.No.34089, 34090 of 2012
Singh Vs. State of Haryana and others reported in 2008(3) CTC 781,
has held thus.
9. We have extracted the charges against the appellant.
These charges did not require any detailed investigation.
Inview of the unexplained delay of nine years, the Trial Court
was justified in holding that the entire enquiry was vitiated
and in declaring that the order of punishment to be null and
void. The Appellate Court did ot have any justifiable reason to
interfere with the said finding. In the circumstances, we are of
the view that the High Court ought to have interfered in the
matter as the Appeal involved a substantial question of law,
i.e. whether issue of charge sheet after nine years, when there
are no special circumstance to explain the delay vitiated the
enquiry. As the matter is old and as we have already found
that the delay vitiated the enquiry, no purpose will be served
by remitting the matter. We propose to dispose of the Appeal
on merits.
10. We, therefore, allow this Appeal and set aside the
judgment and decree of the High Cout and First Appellate
Court and restore the judgment and decree of the Trial Court.
Parties are to bear their respective costs.
12. That apart, this court in the decision in S.Rathinavelu Vs.
kChairman, Tamil Nadu Water Supply and Drainage Board,
Chennai and Another reported in 2009(3) MLJ 479, had held thus:
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W.P.No.34089, 34090 of 2012
“ Though the learned counsel for the petitioner during the
course of arguments has raised the point of delay in initiating the
disciplinary proceedings, no satisfactory reasons have been
placed by the Board for the inordinate delay of 10 years in
initiating the disciplinary proceedings. In this context, it is
worthwhile to extract few decisions of the Supreme Court as
well as this court on the issue of delay in initiating of the
disciplinary proceedings.”
13. It is not disputed by the respondents that, the Charge Memos
were issued on 24.08.2012, for shortage of materials for the period
from 07.07.1994 to 25.04.1997. Further, it is the contentions of the
petitioner that the respondents have not furnished the documents as
required by him, as contemplated under Rules. Therefore, non
furnishing of documents is a violation of principles of natural justice.
In the meantime the respondents have prepared a Panel for the post of
Superintending Engineer and this promotion was stalled by the
respondents, pending charges framed against the writ petitioner.
14. It is contended by the respondents that the Serving Personnel
are liable to be proceeded, till the date of their retirement, for the
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W.P.No.34089, 34090 of 2012
omissions and commissions committed by them at any point of time
during their service. But the respondents have not given neither proper
reasons nor satisfied explanations for the inordinate delay in framing
the charges and initiating the disciplinary proceedings against the writ
petitioner. Therefore, the impugned order suffers legal infirmity and
the same is liable to be quashed.
15. Inview of the above discussions, the impugned charge
memos are quashed. Further, the writ petitioner has attained the age of
superannuation. Hence, he is entitled for notional promotion to the
post of Executive Engineer, on par with his junior.
16. Accordingly, it is ordered as follows:
(i) The impugned Charge Memos dated 24.08.2012 are quashed.
(ii) The respondents are directed to consider the claim of the
petitioner for notional promotion to the post of Executive Engineer on
par with his junior with all consequential benefits, if otherwise he is
eligible, in accordance with law, as early as possible, within a period
of 12 weeks from the date of receipt of a copy of this order.
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W.P.No.34089, 34090 of 2012
17. With the above directions, both the writ petitions in
W.P.No.34089, 34090 of 2012 are allowed. Consequently, connected
miscellaneous petitions are closed. No costs.
24.11.2021
Index:Yes/No
Internet:Yes/No
mst
To
1. The Secretary to Government,
The State of Tamilnadu,
Public Works Department,
Secretariat, Chennai 600 009.
2. The Engineer-in Chief (Buildings)
and Chief Engineer (Buildings),
Chennai Region and Chief Engineer (General),
Public Works Department, Chepauk,
Chennai 600 005.
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W.P.No.34089, 34090 of 2012
D. KRISHNAKUMAR, J.
mst
W.P.No.34089, 34090 of 2012 and
M.P.No.1 &2 of 2012 and
M.P.No.1 of 2013
24.11.2021.
https://www.mhc.tn.gov.in/judis
