Madras High Court
A.P.Vijayakumar vs The Agricultural Production ... on 12 September, 2022
W.P.(MD).No.9956 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.09.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.9956 of 2017
and
W.M.P.(MD).No.18074 of 2017
A.P.Vijayakumar ... Petitioner
Vs.
1.The Agricultural Production Commissioner and
Principal Secretary to Government of Tamil Nadu,
Secretariat,
Chennai – 600 009.
2.The Director Agriculture,
O/o. the Directorate of Agriculture,
Chepauk,
Chennai – 05.
3.The Joint Director of Agriculture,
Tallakulam, Madurai,
Madurai District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, to call for the records pertaining
to the impugned order in G.O.(3D) No.109, Agriculture (Ve.Ni.5) Department
dated 28.03.2017 on the file of the first respondent and quash the same as
illegal.
1/12
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W.P.(MD).No.9956 of 2017
For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.J.Ashok,
Additional Government Pleader.
ORDER
This Writ Petition has been filed for Writ of Certiorari to quash the
impugned order in G.O.(3D).No.109, Agriculture (Ve.Ni.5) Department dated
28.03.2017 on the file of the first respondent.
2. The brief facts of the case are that the petitioner was serving as an
Office Assistant in the respondent Agriculture Department from 25.01.1985. A
criminal case was registered against the petitioner and others in the year 2001
alleging that an amount of Rs.63,589/- was loss to the Department due to the
negligence of the petitioner and others. In the criminal case, a charge sheet was
filed in C.C.No.327 of 2005 and the same is pending till date. The petitioner
was suspended from service on 01.09.2001, based on this Court order, the
suspension was revoked on 14.03.2016 and the petitioner was serving as Office
Assistant till date. A charge memo was issued on 11.03.2003 levelling two
charges, wherein the charge memo had placed the entire responsibility on the
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W.P.(MD).No.9956 of 2017
petitioner for the loss. The contention of the petitioner is that the vital
documents listed in Annexure-3 of the charge memo were not provided to the
petitioner, in spite of repeated request made by the petitioner. In the
meanwhile, the enquiry officer concluded the enquiry holding that the charges
were proved and the reason given in the enquiry report is that the charge sheet
is filed in the criminal case on the same set of charges and hence the charges
are proved. The petitioner offered explanation dated 20.02.2008 explaining that
the vital documents were not provided and could not offer any explanation on
the enquiry report as well. In spite of these objections, the first respondent
passed the impugned order dated 28.03.2017 imposing a punishment of
stoppage of increment for one year with cumulative effect and with recovery of
Rs.63,589/- on monthly installments from the petitioner's salary. According to
the petitioner, the impugned order ought to be set aside since the department
enquiry was concluded after a lapse of so many years, the enquiry was not
conducted in a fair manner and the vital documents were not provided. The
petitioner also contented that the impugned order was served on 03.05.2017
and the recovery was initiated from the end of May, 2017 i.e. on the same
month itself. Hence the petitioner has prayed to set aside the impugned order.
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W.P.(MD).No.9956 of 2017
3. When this case was taken up for admission, an interim order was
granted staying the recovery proceedings alone.
4. The respondents have filed a counter along with vacate stay petition.
In the counter it has been stated that during his service under the Assistant
Director of Agriculture, Usilampatti, the petitioner was directed to encash the
bill amount from the treasury of Usilampatti. The petitioner has committed
malpractices by tampering the departmental records such as departmental bills
and MTC-70 Register etc., thereby, he involved in misappropriation of
Government amount totally to the tune of Rs.63,589/-. The particulars of
misappropriation and details are as follows:
SI. Date of Original Encashed Receipt Amount Misappropriated amount
No. Encashment Bill amount Number returned (Rs.)
Amount by the in the to the
petitioner Treasury office by
the
petitioner
1. 20.04.2001 1815 4815 126 1815 3000
2. 22.06.2001 15250 25250 84 15250 10000
3. 11.07.2001 5589 11178 313 5589 5589
4. 23.07.2001 54840 64840 300 54840 10000
5. 08.08.2001 15000 50000 236 15000 35000
Total 63589
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W.P.(MD).No.9956 of 2017
5. The respondents further submitted that the petitioner was the accused
in the criminal case in Crime No.25 of 2001 for alleged offences under Sections
403, 409, 468 and 420 IPC on the file of District Crime Branch, Madurai. The
petitioner was arrested, was under judicial custody for more than 48 hours and
hence the petitioner was placed under deemed suspension. In the meanwhile, a
charge sheet was filed in C.C.No.327 of 2005 and the same is pending for trial.
In spite of pending criminal case, a separate disciplinary proceeding was
initiated, a charge memo imputing two charges were issued. The enquiry was
conducted and an enquiry report has been submitted. Thereafter, based on the
enquiry report, impugned punishment order was passed imposing punishment
of stoppage of increment for one year with cumulative effect and directed to
recovery the loss amount of Rs.63,589/- from the petitioner's salary for 13
months. In the meantime, based on the orders of higher officers, after 15 years
the petitioner was reinstated into service through the order of the third
respondent dated 09.03.2016. Presently, the petitioner is continuing his service
in the cadre of Office Assistant under the control of Assistant Director of
Kottampatty, Melur Taluk, Madurai District. Aggrieved over the punishment,
the present Writ Petition is filed. The contention of the respondent is that the
enquiry was conducted by affording sufficient opportunities to the petitioner,
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W.P.(MD).No.9956 of 2017
all the documents referred in the proceedings were served to the petitioner and
he was permitted to see the respective original documents also. The
respondents denied the allegations of the petitioner that he was not served with
annexure-III of the charge memo and submitted that the annexure -III is the list
of documents before the enquiry officer. The petitioner had submitted his
explanation as early as on 21.05.2003. Before submitting his explanation, the
petitioner did not raise any plea relating to non-furnishing of documents. If the
petitioner has not furnished any documents, he could have specifically raised
the plea much prior to his explanation submitted to the enquiry officer on
21.05.2003. The enquiry report has held that the charges were proved and the
enquiry report was duly served to the petitioner on 14.12.2007 and the
petitioner was directed to submit his further explanation. The petitioner in order
to drag on the disciplinary proceedings had made a representation dated
20.02.2008 alleging that he was not furnished with some documents for which
the second respondent replied vide letter dated 28.04.2008 rejecting the
petitioner's claim by specifically mentioning that the act of the petitioner was
nothing but to drag on the disciplinary proceedings. Since the petitioner who
had involved in tampering of evidence and re-creating the bills in the MTC
records, the petitioner was shown as Accused No.1 in the criminal proceedings.
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W.P.(MD).No.9956 of 2017
Therefore, the respondents have rightly imposed a punishment of stoppage of
increment for one year with cumulative effect along with the recovery of loss of
Rs.63,589/-. The petitioner has not raised any legal grounds to interfere with
the punishment. Hence the Learned Additional Government Pleader prayed to
dismiss this Writ Petition.
6. Heard Mr.T.Lajapathi Roy, the Learned Counsel for the petitioner and
Mr.J.Ashok, Learned Additional Government Pleader appearing for the
respondents and perused the records.
7. When the Writ Petition was taken up for final hearing, the Learned
Additional Government Pleader appearing for the respondents submitted that in
the criminal case the charge sheet has been filed and the petitioner is shown as
Accused No.1 along with other co accused and the criminal case is still pending
before the Learned Judicial Magistrate. In the meanwhile, the petitioner had
attained superannuation on 30.06.2019, the respondents had passed an order of
suspension on the eve of the date of superannuation and the petitioner was not
allowed to retire and retain in service. Hence the petitioner has filed another
Writ Petition in W.P.(MD).No.14895 of 2019, wherein, the petitioner had
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W.P.(MD).No.9956 of 2017
prayed to revoke the suspension order and to set aside the consequential order
to retain the petitioner in service. The Learned Single had dismissed the
aforesaid Writ Petition by order dated 08.02.2022.
8. The Learned Counsel appearing for the petitioner submitted that there
are other co-delinquents in the proceedings and the respondents have imposed a
punishment of censure and contended that the respondents have discriminated
and imposed a punishment of stoppage of increment for one year with
cumulative effect along with the recovery of loss of Rs.63,589/-. The Learned
Counsel appearing for the petitioner submitted that the punishment of stoppage
of increment for one year with cumulative effect was already given effect to and
the petitioner is more than sixty years old and he has not received any terminal
benefits after superannuation. The Learned Counsel further submitted that the
criminal case is pending for the past fifteen years and the criminal case was not
taken up inspite of this Court order wherein this Court had directed to complete
the trial within one year. The petitioner further contended that after retirement,
the enquiry cannot conducted, if at all the enquiry ought to be conducted then
the proceedings ought to be initiated under the Pension Rules. Since the
disciplinary proceeding has ended up in punishment, the petitioner prayed to
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W.P.(MD).No.9956 of 2017
allow the writ petition and direct the respondents to allow the petitioner to
retire and to pay the terminal benefits.
9. Therefore, this Court is of the considered opinion that the petitioner
claim ought to be considered, since the co-delinquents were imposed lesser
punishment, the petitioner’s punishment ought to be interfered with. Since the
petitioner is shown as Accused No.1 in the criminal case, the punishment ought
to be modified proportionately, hence this court is modifying the punishment
from stoppage of increment for one year with cumulative effect as stoppage of
increment for one year without cumulative effect.
10. Further the disciplinary proceedings cannot be kept endlessly
pending by showing the pendency of criminal case. Moreover, in the present
case the respondents have already completed the disciplinary proceedings and
had imposed punishment. Now by citing criminal proceedings the petitioner
cannot be retained in service. In several judgments, it has been held that the
criminal proceedings and disciplinary proceedings are independent to each
other and disciplinary proceedings can be dealt with separately. If that is so
retaining the petitioner in service is unwarranted.
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W.P.(MD).No.9956 of 2017
11. To meet the ends of justice, this Court is passing the following order:
(i)The punishment of stoppage of increment for one year with cumulative
effect is modified as punishment of stoppage of increment for one year
without cumulative effect.
(ii) The respondents are directed to allow the petitioner to retire from
service.
(iii) The respondents are directed to pay all the terminal and monetary
benefits including the salary which is pending after retaining Rs.63,589/-
(Rupees Sixty Three Thousand Five Hundred and Eighty Nine only)
alone.
(iv)The respondents shall consider and pass orders regarding the
amount after disposal of the criminal proceedings, until then the amount
of Rs.63,589/- (Rupees Sixty Three Thousand Five Hundred and Eighty
Nine only) shall be retained by the respondents.
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W.P.(MD).No.9956 of 2017
12. With the above modification, this Writ Petition is allowed. There
shall be no order as to costs. Consequently, connected miscellaneous petition
stands closed.
12.09.2022
Index : Yes / No
Internet : Yes/ No
Nsr
To
1.The Agricultural Production Commissioner and
Principal Secretary to Government of Tamil Nadu,
Secretariat,
Chennai – 600 009.
2.The Director Agriculture,
O/o. the Directorate of Agriculture,
Chepauk,
Chennai – 05.
3.The Joint Director of Agriculture,
Tallakulam, Madurai,
Madurai District.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.9956 of 2017
S.SRIMATHY, J.
Nsr
W.P.(MD).No.9956 of 2017
12.09.2022
https://www.mhc.tn.gov.in/judis
