Madras High Court
The Principal Secretary To ... vs M.Kamaraj on 1 March, 2022
W.A.No.1899 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2022
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A.No.1899 of 2018
1. The Principal Secretary to Government
Highways & Minor Ports (HL1) Department,
Fort St.George,
Chennai 600 009.
2. The Chief Engineer (General) Highways
Chepauk, Chennai - 600 005. ... Appellants
-vs-
M.Kamaraj ... Respondent
Prayer:Writ appeal is filed under clause 15 of the Letter Patent praying to
allow the Writ Appeal and set aside the order dated 09.03.2015 in
W.P.No.33208 2013.
For Appellants : Mr.K.V.Sajeev Kumar
Special Govt.Pleader
For Respondent : Mr.K.Venkataramani
Senior Counsel for
M/s.M.Muthappan for Caveator
*****
JUDGMENT
https://www.mhc.tn.gov.in/judis
W.A.No.1899 of 2018
S.VAIDYANATHAN, J.
&
MOHAMMED SHAFFIQ, J.
The present appeal has been preferred against the order of the learned
Single Judge made in W.P No.33208 of 2013 dated 09.03.2015.
2. The writ petitioner, who is the respondent herein was imposed with
the punishment of stoppage of increment for a period of three months
(01.10.2014 to 31.12.2014) vide G.O.(D).No.216, Highways and Minor
Ports (HL1) Department, dated 25.10.2013. The petitioner entered the
Government service on 25.11.1981 as Assistant Engineer in Highways
Department and thereafter he was promoted as an Assistant Divisional
Engineer and later as Divisional Engineer. He was faced with four charges.
Similarly, four other employees were also proceeded departmentally. Then
the Enquiry Officer submitted a report to the effect that charges 1 and 2
have not been proved. With respect to charge No.3 it has been partly proved
and the 4th charge was fully proved. The Enquiry Officer's finding was
accepted by the Disciplinary Authority, who after issuance of second Show
https://www.mhc.tn.gov.in/judis
W.A.No.1899 of 2018
Cause Notice, imposed the punishment of stoppage of increment for a
period of three months without cumulative effect when the order of
punishment was challenged before the learned single Judge, it has been set
aside against which the respondents/appellants herein are before this Court.
3. The main contention of the appellants was that the writ
petitioner/respondent herein committed serious procedural lapses and that
the punishment was rightly imposed. It is not that the writ petitioner was
alone was subjected to the Disciplinary Proceedings and similarly placed
persons have also been proceeded with. However, charges against those
persons have been dropped.
4. One of the main contentions of the writ petitioner was that the
charge memo was issued belatedly on 14.05.2009 and it was not possible for
him to defend the case after a lapse of nine years. Thus by relying upon the
decision of the Hon'ble Supreme Court in the case of UCO Bank and
others Vs Rajendra Shankar Shukla, reported in (2018) 14 SCC 92, it was
argued on the side of writ petitioner that the Court had interfered with the
https://www.mhc.tn.gov.in/judis
W.A.No.1899 of 2018
punishment in the said case on the ground of delay in proceeding with the
enquiry and granted relief to the employee therein. The relevant portion of
the judgment is extracted hereunder:
“12. We do not find any reason to interfere with the
judgment and order passed by the High Court. However, it is
necessary for us to highlight a few facts which were brought to our
notice during the course of submission made by the learned
counsel. the first issue of concern is the enormous delay of about 7
years in issuing a charge-sheet against Shukla. There is no
explanation for this unexplained delay. It appears that some internal
discussions were going on within the Bank but that it took the Bank
7 years to make up its mind is totally unreasonable and
unacceptable. On this ground itself, the charge-sheet against Shukla
is liable to be set aside due to the inordinate and unexplained delay
in its issuance.
13. What compounds the default on the part of the Bank is
that Shukla was placed in a higher category as a Manager on
19.07.1994 while all these discussions were going on in the Bank.
He was also allowed to cross the efficiency bar on 12.08.1996
again while the discussions were going on. Surely, if the Bank was
serious about proceeding against Shukla for misconduct, they
would not only have taken prompt action in issuing a charge-sheet
but would not have granted him the benefit of being placed in a
higher category or crossing the efficiency bar.”
Before the learned single Judge, it was put forth that there were procedural
irregularities and no material document was placed before the Court to
establish the charges. The learned single Judge has recorded his findings in
Paragraph No.14, which is extracted below:-
"14. The first respondent alleged that the petitioner in collusion
with other employees, recorded false measurements and caused
https://www.mhc.tn.gov.in/judis
W.A.No.1899 of 2018
financial loss to the Government. The Enquiry Officer scanned the
materials and arrived at a finding that the work was executed as per the
agreement, using standard materials and as such, there was no loss to
the Government. Charges 1 and 2 are closely connected to charges 3
and 4. The Disciplinary Authority alleged that the petitioner committed
irregularities in the matter of maintaining records, without actually
receiving, lending or borrowing bulk bitumen and emulsion bitumen
and made false entries. The Enquiry Officer reported that the petitioner
failed to make entries, notwithstanding the fact that the transactions
have taken place between R.R.Chidambaram, Bhuvanagiri Town
Panchayat and Keerapalayam Panchayat Union. The Enquiry Officer
admitted that the work was completed in accordance with the contract.
It is also a matter of record that the petitioner was in charge of the
division from where materials were taken on loan. His failure to record
loan transactions was taken as a misconduct. The materials on record
would show that the petitioner was holding charge of Assistant
Engineer (H) Chidambaram and full additional charge of Nabard
section of Chidambaram and he was in-charge of Nabard work. In fact,
the Enquiry officer agreed that in view of the petitioner holding the post
of both Assistant Engineer of Chidambaram and full additional charge
of Nabard Section of Chidambaram, the question of acknowledgment
for receiving material does not arise. Such being the position, the
Enquiry Officer was not correct in concluding that the petitioner
committed a procedural lapse. The question of making an entry would
arise only in case the petitioner has taken up a contention that he has
received bitumen from another division and used it for laying road.
Here in this case, the Enquiry Officer on the basis of available materials
very clearly arrived at a finding that the road work was undertaken
using bitumen and there was no financial loss to the Government. Since
the petitioner was in charge of both the divisions, there was no
requirement to record the transaction regarding temporary loan of
bitumen. It was a short term loan transaction. Since the bitumen was not
readily available to undertake the wrok, it was taken as loan from the
other division, which was also under the control of the petitioner. In
fact, the Department should appreciate the swift action taken by the
petitioner to complete the work by taking bitumen on loan. In view of
the finding with regard to charges 1 and 2, there is no justification for
arriving at a different finding with respect to charge No.3, to the effect
https://www.mhc.tn.gov.in/judis
W.A.No.1899 of 2018
that the petitioner committed a procedural lapse. I am therefore of the
view that the Enquiry Officer and that matter, the Disciplinary
Authority, erred in arriving at a finding that the petitioner committed a
procedural lapse".
5. The learned single Judge has also observed that ignoring the reply
given to the comments of the Enquiry Officer, the Disciplinary Authority
has imposed the punishment, even though charges have been framed under
Rule 17 (b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules.
Taking note of the fact that similar proceedings were taken against
R,Shanmugam, Joint Chief Engineer and H.Mohammed John, Divisional
Accountant and that the very same four charges were framed against them,
the Enquiry Officer has taken a different view in respect of them and
reported that the charges were not proved against those persons. Hence, the
learned single Judge has held that the writ petitioner should not have been
treated differently.
6. It is no doubt true that the judicial review is very limited in matters
arising out of departmental proceedings and Court must have strong reasons
to disagree with the findings of the Enquiry Officer and the Disciplinary
Authority to come to a different conclusion. This is one such case, where
identical charges were issued to three persons, out of which, Enquiry
https://www.mhc.tn.gov.in/judis
W.A.No.1899 of 2018
Officer had reported that charges have not been proved against
R.Shanmugam and H.Mohammed John and the Government have accepted
the report and dropped further action. The writ petitioner has been singled
out and treated differently. It is represented by both parties that Joint Chief
Engineer is the superior officer to the writ petitioner, namely, Divisional
Engineer against whom charges have been dropped and the Government
have not proceeded further. Taking note of the delay in initiation of enquiry
and conclusion of enquiry after a period of 10 years, the learned Single
Judge has granted relief to the writ petitioner and interfered with the
punishment. Hence, we find that there are no reasons to disagree with the
findings of the learned Single Judge, who has set aside the punishment of
stoppage of increment for a period of three months. One of the issues raised
before this Court in the writ appeal is that the writ petitioner had already
filed W.P.No.33208 of 2013, wherein he has sought for implementation of
the punishment ordered in W.P.No.3986 of 2014 dated 12.02.2014 and this
Court has passed the following order to implement the said G.O.(D).No.216
dated 25.10.2013 and the relevant paragraph No.4 is extracted hereunder:
"4. Though the petitioner filed writ petition in W.P.No.33208 of
2013 before this Court challenging the punishment imposed against him,
https://www.mhc.tn.gov.in/judis
W.A.No.1899 of 2018
he made a representation to the respondents for implementation of the
said punishment since if the order of punishment order is implemented
from the date on which he was served, the period of punishment will be
over by 01.12.2013 and thereby he would become eligible for next
promotion. The petitioner relied upon the guidelines issued by the
Government in respect of giving effect to the punishment in
Lr.No.28790/3/2000/1 Personnel & Administrative Reforms (s)
Department dated 05.07.2001 in and by which, it is categorically stated
that an order imposing any punishment including withholding of
increment takes effect from the date on which the said order is
communicated to the concerned government servant. In fact, after
imposing the punishment, there was no impediment for the respondents
to implement the order of punishment since there was no interim order in
the writ petition filed by the petitioner restraining them from
implementing the order of punishment. Therefore, it is incumbent upon
the respondents to implement the order of punishment once imposed
against the petitioner.
Accordingly, the respondents are directed to implement the
punishment imposed on the petitioner in GO(D)No.216 Highways and
Minor Ports (HL1), dated 25.10.2013 from the date on which it was
communicated as per the guidelines issued by the Government in Letter
No.28790/3/2000/1 Personnel & Administrative Reforms (s) Department
dated 05.07.2001, within a period of four weeks from the date of receipt
of a copy of this order."
7. A reading of the affidavit filed by the writ petitioner in support of
that writ petition and the prayer would make it very clear that he did not
want to miss the bus to get promotion and submitted that the punishment
may be implemented without prejudice to his rights to question the
punishment which was pending in W.P.No.33208 of 2013. The said writ
https://www.mhc.tn.gov.in/judis
W.A.No.1899 of 2018
petition was allowed and now is affirmed by this Court. It is submitted that
promotion is a different cause of action, which cannot be clubbed along
with the punishment issued, that was the subject matter of the writ petition
and that the writ petitioner will have to file a separate writ petition seeking
for promotion. We are not inclined to accept the contention. Once the
impugned order is quashed, it is deemed that the order impugned in the writ
petition is non-est in the eye of law and the employee should have been
considered for promotion. In this case, even assuming for the sake of
argument that the writ petitioner has not filed W.P.No.33208 of 2013 and
accepted the punishment, atleast from the futuristic date, he should have
been considered and promoted and depending upon the outcome of the writ
petition the benefits could have been extended retrospectively. In the
present case on hand neither the case of the writ petitioner has been
considered for the future promotion nor benefits have been extended even
after the writ petition was allowed. If the writ petitioner was eligible as per
the order of this Court dated 12.02.2014 in WP.No.3986 of 2014 and he
S.VAIDYANATHAN, J.
and
MOHAMMED SHAFFIQ, J.
dpq
https://www.mhc.tn.gov.in/judis
W.A.No.1899 of 2018
being in service, the benefits ought to have been extended from the future
date, taking note of the crucial date and zone of consideration, if found
eligible. Once the order has been quashed, the writ petitioner would be
automatically entitled to all the benefits, as if there is no punishment at all in
the eye of law.
8. With the above observation, this Writ Appeal is disposed of. No
costs. Consequently connected miscellaneous petition is also closed.
(S.V.N.J.,) (M.S.Q.J.,)
01.03.2022
dpq
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
To:
1. The Principal Secretary to Government
Highways & Minor Ports (HC1) Department,
Fort St.George,
Chennai 600 009.
2. The Chief Engineer (General) Highways
Chepauk, Chennai - 600 005.
W.A.No.1899 of 2018
https://www.mhc.tn.gov.in/judis
