Madras High Court
The Agricultural Production ... vs J.Murugabharathi on 29 June, 2022
W.A.(MD)No.625 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.625 of 2022
and
C.M.P.(MD)No.5232 of 2022
The Agricultural Production Commissioner
and Principal Secretary to Government,
Agricultural Department,
Secretariat, Chennai – 600 009. ... Appellant
Vs.
J.Murugabharathi ... Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.18206 of 2019, dated
01.04.2021.
For Appellant :Mr.S.P.Maharajan
Special Government Pleader
For Respondent :Mr.T.Lajapathi Roy
***
1/13
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W.A.(MD)No.625 of 2022
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
This Writ Appeal is filed challenging the order passed in
Writ Petition W.P.(MD)No.18206 of 2009, dated 01.04.2021.
2.The Writ Petition was filed for Writ of Certiorari, to quash
the impugned charge memo, dated 29.09.2008 and consequential
impugned G.O. passed in G.O.(3D)No.108, Agriculture (Ve.Ni.8)
Department, dated 17.07.2019.
3.The brief facts as stated in the writ petition W.P.(MD)No.
18206 of 2009 are that the petitioner was appointed as an
Agriculture Officer on 23.09.1996. When he was working as
Agricultural Development Officer in the year 2008, the respondent
had issued impugned charge memo, dated 29.09.2008, alleging that
the writ petitioner had failed to conduct Farmers Field School
Trainings properly under the integrated Cereals Development
Programme in four villages in Sivagangai Block during the years
2002-2003 and 2003-2004 and created false records as if the said
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W.A.(MD)No.625 of 2022
trainings were actually conducted as per the schedule and the
farmers were provided with tea refreshment, one IPM Kits, while in
fact, without supplying the same, misappropriated Rs.29,625/-
(Rupees Twenty Nine Thousand Six Hundred and Twenty Five only),
the amount meant for training.
4. The writ petitioner participated in the enquiry. The
petitioner alleged that the charge memo was issued on 29.09.2008,
the enquiry report was submitted on 29.05.2013 and the
respondent has not completed the enquiry proceedings in time. In
the year 2014 the respondent has forwarded the operative portion
of the enquiry report and sought an additional explanation and the
petitioner raised objection on 07.02.2015. Even after additional
explanation, the respondent has not completed the disciplinary
proceedings. Thereafter on 23.12.2016 the government has
proposed a punishment of 18 months without cumulative effect. As
per the Advisory Department recommendations it was proposed to
impose major punishment of compulsory retirement. Because of the
delayed disciplinary proceedings and pendency of this disciplinary
proceedings, the petitioner was deprived promotion to the post of
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W.A.(MD)No.625 of 2022
Assistant Director of Agriculture bypassing the seniority in the year
2018. Aggrieved over the same, the petitioner had filed W.P.
(MD)No.11969 of 2018 and this Court, vide order, dated
06.06.2018, directed the respondent to pass final orders on merits
within a period of four weeks from the date of receipt of a copy of
the order. In spite of the outer time limit fixed by the order, dated
06.06.2018, the respondent had not passed any final orders.
Thereafter, the respondent had passed the punishment order dated
17.07.2019 which was impugned in the Writ Petition. According to
the writ petitioner, it is beyond the extension of time prescribed by
the High Court.
5. The contention of the petitioner is that the imposition of
the punishment is highly disproportionate, since for the identical
charge, the similarly placed Agriculture Development Officer,
namely Mr.N.Raja, the respondent had chosen to give a lesser
punishment of stoppage of increment for one year with cumulative
effect. The petitioner had eleven more years of service and hence,
the impugned punishment is excess for a flimsy charge. The
disciplinary authority has sought opinion from TNPSC, where it was
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W.A.(MD)No.625 of 2022
recommended to impose a major punishment, since it is a charge of
misappropriation. The petitioner submitted that the Assistant
Director had not issued any sanction order for granting fund for
conducting Farmers School Programme to the petitioner. As per
the orders of the Director of Agriculture, the fund was provided to
one Mr.Arumugam, Agriculture Officer (Extension) and not to the
writ petitioner. The same was substantiated by referring to the
submissions of one Vellaichamy. Hence, according to the petitioner,
the allegation of misappropriation of funds to the tune of Rs.
29,625/- (Rupees Twenty Nine Thousand Six Hundred and Twenty
Five only), is absolutely false.
6. The respondent had filed a counter affidavit stating that
on preliminary enquiry, various acts of the petitioner had prima
facie indicative of abusive misconduct. Consequent to the available
prima facie evidence, the file was remitted to the Government to
take appropriate further action. Thereafter, the Commissioner of
Agriculture framed charges, vide charge memo, dated 29.09.2008.
Subsequently, an Enquiry Officer was appointed and the enquiry
report was received by the Government on 12.07.2013. Further,
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W.A.(MD)No.625 of 2022
the enquiry report was sent to the Director of Vigilance and Anti
Corruption for offering their remarks on the enquiry report. The
Vigilance and Anti Corruption Department accepted the findings of
the Enquiry Officer, vide communication, dated 10.06.2014.
Thereafter, the Government called for further explanation from the
petitioner and to prove the charges, vide letter, dated 08.12.2014
and the petitioner had submitted his further explanation on
07.02.2015. The government proposed to impose a punishment of
stoppage of increment for a period of 18 months without cumulative
effect to the petitioner on 26.05.2016 and the Advisory Department
had opined that as charges are criminal misconduct of
misappropriation of Government money by creating false records, it
is suggested to impose a major punishment like dismissal or
removal or compulsory retirement. Thereafter, the Government
again sought further clarification from the Advisory Department to
consider to impose the compulsory retirement or reduction to the
lower post. The Advisory Department had stated that it will take
some more time to come to conclusion on the implementation of
punishment of reduction to lower pay scale, in the new pay system
and take a decision to impose any other suitable punishment, which
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W.A.(MD)No.625 of 2022
can be fully implemented during the service. Finally, the
Government had decided to impose the major punishment of
compulsory retirement. Thereafter, also the Commission had opined
to the proposed compulsory retirement. Hence, the punishment of
compulsory retirement was imposed and there is no legal infirmity.
Hence, the respondent prayed to dismiss the Writ Petition.
7. Aggrieved over the punishment, the petitioner has
preferred the Writ Petition. At the time of filing the Writ Petition,
the writ petitioner has not raised any plea of bias. Thereafter, the
petitioner had filed an additional affidavit where the plea of bias
was pleaded.
8. The Learned Single Judge has elaborately discussed on
the plea of bias. The objection of the appellant is that the plea of
bias was taken on the later stage and the same cannot be
entertained, but the said plea of the appellant was rejected by the
Learned Single Judge. When the Writ Appeal was taken up for
admission, the learned Counsels for the appellant as well as the
respondent had submitted independent of the plea of bias, the Writ
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W.A.(MD)No.625 of 2022
Appeal may be considered on merits, since the plea of bias was
canvassed on a later stage and the writ petitioner has not
impleaded any officer in their individual capacity to substantiate the
plea of bias.
9. Heard Mr.S.P.Maharajan, learned Special Government
Pleader appearing for the appellant and Mr.T.Lajapathi Roy, learned
Counsel appearing for the respondent and perused the records
placed before this Court.
10. As far as the plea of disproportionate of punishment is
concerned, even after proposing the punishment of stoppage of
increment for 18 months without cumulative effect, an opinion was
sought from the Vigilance and Anti-Corruption Department, which
is an Advisory Body and it has advised major punishment by taking
the fact that the allegation against respondent / writ petitioner is
for misappropriation and for creating the false records. It is a
categorical submission of the Learned Counsel appearing for the
writ petitioner that the amount was not allotted to writ petitioner,
but, it was allotted to one Arumugam and the said fact was not
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W.A.(MD)No.625 of 2022
denied by the appellant. Therefore the basis of the advice itself is
on a wrong fact and hence the Advisory Body’s advise / opinion
ought to be ignored. Therefore, the allegation of misappropriation
fails and the punishment is absolutely disproportionate.
11. Even according to the disciplinary authority, the
proposed punishment is only for stoppage of increment. The
disciplinary authority has returned the files for suggesting a lesser
punishment like that of reduction of rank. The Advisory body has
stated that it will take further time for such suggestion because of
the new pay system. Finally, the disciplinary authority has imposed
a punishment of compulsory retirement and which was agreed by
the Advisory body. On considering this fact, this Court is of the
considered view that the disciplinary authority was convinced that
the petitioner ought to be imposed with a lesser punishment and
only based on the views of the Advisory body, the punishment of
compulsory retirement was imposed. The disciplinary authority has
not applied his mind and has simply taken the opinion of the
Advisory body and has imposed the punishment. Even according to
the disciplinary authority, the fact of misappropriation is not proved
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W.A.(MD)No.625 of 2022
and that is why a lesser punishment was proposed. One more fact
ought to be taken into account, that the Vigilance and Anti-
Corruption Department has not filed any criminal case against writ
petitioner. And this fact would prove that the allegation of
misappropriation is not proved and there is no prima facie evidence
for filing any criminal case against the writ petitioner and that is
why the appellant has not preferred any criminal case.
12. It is also seen from the records that the alleged
delinquency in the year 2002-2003 and 2003-2004, the impugned
charge memo was issued in the year 2008, which is after a lapse of
five years / four years. The appellant submitted that the matter
ought to be remitted back for fresh consideration. However, this
Court is declining to entertain such plea for a sole reason that the
charge memo was issued belatedly and the enquiry proceedings
was concluded in the year 2014, which is also belated proceedings.
If the matter is remitted back, again, the appellant would take
another ten years to conclude the proceedings. The writ petitioner
had submitted because of the pendency of this disciplinary
proceedings the appellant had not considered promotion to the writ
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W.A.(MD)No.625 of 2022
petitioner in the year 2018. Therefore, this Court is of the
considered opinion that the original proposed punishment of
stoppage of increment for a period of eighteen months without
cumulative effect ought to be imposed on writ petitioner. Therefore,
this Court is of the considered opinion that the original proposed
punishment ought to be imposed. In order to meet the ends of
justice, this Court is passing the following orders:
i. The order passed in the Writ Petition is modified and the
impugned punishment of compulsory retirement is modified as
stoppage of increment for a period of 18 months without cumulative
effect.
ii. The appellant is directed to reinstate the respondent in
service within a period of four weeks from the date of receipt of
copy of this order. The respondent is entitled to all consequential
service and monetary benefits.
iii. The appellant is directed to consider the promotional
aspects of the respondent also.
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W.A.(MD)No.625 of 2022
13. With this direction, the Writ Appeal is disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [S.S.Y., J.]
29.06.2022
Index : Yes / No
Tmg
To
The Agricultural Production Commissioner
and Principal Secretary to Government,
Agricultural Department,
Secretariat, Chennai – 600 009.
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.625 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
Tmg
W.A(MD)No.625 of 2022
29.06.2022
https://www.mhc.tn.gov.in/judis
