Madras High Court
A.Varudaraju vs The Commissioner Of Agriculture – ... on 1 June, 2023
W.P.No.9073 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.06.2023
CORAM
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.9073 of 2011
M.P.No.2 of 2011
A.Varudaraju ... Petitioner
-Vs-
1. The Commissioner of Agriculture – cum
Secretary to Government,
Agriculture Department,
Secretariat,
Chennai 600 009
2. The Commissioner of Agricultural Marketing
and Agri Business,
Guindy,
Chennai 600 032
3. The Secretary,
Salem Market Committee,
Salem-16 ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Ceriorarified Mandamus to call for the
records passed by the second respondent in Se.Mu.Aa.AaONa1.9564/2000(2)
dated 08.03.2004 and the subsequent order of the first respondent issued in
GO.(2D) No.52, Agriculture (Agri.Marketing1) Department dated 19.04.2006
and the subsequent order passed in G.O.(2D) No.224, Agriculture
(Agri.Admn.5) Department dated 06.10.2008 and the subsequent order passed
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W.P.No.9073 of 2011
in G.O.(2D) No.83, Agriculture (Agri.Marketing1) Department dated
23.03.2010 and consequently direct the respondents to reinstate the petitioner
into service with all consequential and attendant benefits.
For Petitioner : Mr.R.N.Amarnath
For Respondents : Mr.V.Nanmaran,
Addl. Government Pleader for R1 & R2
: Mr.A.Selvendran
Special Government Pleader for R3
ORDER
This writ petition has been filed to call for the records passed by the
second respondent in Se.Mu.Aa.AaONa1.9564/2000(2) dated 08.03.2004 and
the subsequent order of the first respondent issued in GO.(2D) No.52,
Agriculture (Agri.Marketing1) Department dated 19.04.2006 and the
subsequent order passed in G.O.(2D) No.224, Agriculture (Agri.Admn.5)
Department dated 06.10.2008 and the subsequent order passed in G.O.(2D)
No.83, Agriculture (Agri.Marketing1) Department dated 23.03.2010 and
consequently direct the respondents to reinstate the petitioner into service with
all consequential and attendant benefits.
2. The facts of the case in a nutshell are as under:-
2.1 The petitioner was appointed as Office Assistant in the third
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W.P.No.9073 of 2011
respondent Market Committee on 08.09.1993 through employment exchange
and subsequently, promoted as Junior Assistant on 14.09.1998. Thereafter, he
was transferred and posted as Junior Assistant in the Head Office of Salem
Market Committee.
2.2 While so, the petitioner was issued with a charge memo dated
13.09.2000 on 4 counts pertaining to belated payment of the advance and loan
amounts recovered from the salaries of the employees, as if he was regularly
doing it for many years, though the issue was confined to three months. The
petitioner gave an explanation to the charge memo and participated in the
enquiry. Notwithstanding the fact that the charges related to meagre amount
under each head and the petitioner had also remitted the amounts and further in
respect of one amount, ie, Rs.1,788.10, the petitioner had also made the
payment, final orders were passed by the 2nd respondent on 08.03.2004
removing him from service.
2.3 As against the order of the second respondent dated 08.03.2004,
the petitioner preferred an appeal to the first respondent/ State Government in
the month of May 2004. However, no orders were passed by the 1st
respondent. At that stage, the petitioner filed WP No. 10057 of 2005
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W.P.No.9073 of 2011
challenging the order of dismissal from service, wherein, this Court passed
orders on 24.03.2005 directing the first respondent to consider and pass orders
on the appeal dated 11.05.2004 made by the petitioner within a period of 12
weeks from the date of receipt of the copy of the order.
2.4 Thereafter, the first respondent passed orders in G.O.(2D) No. 52,
dated 19.02.2006 rejecting the appeal made by the petitioner based on the
opinion given by the Tamil Nadu Public Service Commission. Subsequently,
the petitioner filed a Revision Petition which was also rejected vide G.O. (2D)
No.224, Agriculture (Agri Busi 5) Dept., dated 06.10.2008.
2.5 Subsequently, the petitioner made a further Revision Petition to
the Government in the year 2009 which was forwarded by the 2nd respondent
on 21.08.2009 to the first respondent. However, the first respondent had
passed GO (2D) No.83, Agriculture (Agri Marketing) Dept dated 23.03.2010
again rejecting the Revision Petition filed by the petitioner stating that there
are no fresh reasons stated to consider his claim. Challenging the orders dated
08.03.2004 and 19.04.2006 passed by the first and second respondents
respectively and also challenging G.O. (2D) No.224 dated 06.10.2008 and
G.O.(2D) No.83 dated 23.03.2010, the present writ petition has been filed.
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W.P.No.9073 of 2011
3. The learned counsel appearing for the petitioner submitted that the
petitioner has temporarily misappropriated a meagre amount of Rs.1788.10/-
and subsequently the petitioner has also made the payment on 05.10.2000.
When the petitioner was drawing the salary amount for the employees from the
State Bank of India, Salem Branch there was a shortage of Rs.30,000/- and the
same was not noticed by the petitioner at the time of receiving the money.
Later when the petitioner came to know about the same he immediately rushed
back to the bank enquiring about the shortage of cash. But however the
employees of the bank expressed their inability to help the petitioner. The
learned counsel further submitted that there was a delay in remitting the
amount recovered from the salaries of the employees relating to festival
advances and other loans and advances which would come around less than
Rs.3,000/- per month and the petitioner has remitted the amount after some
days. The learned counsel further submitted that the petitioner was issued with
a charge memo dated 13.09.2000 on 4 counts pertaining to belated payment of
the advance and loan amounts recovered from the salaries of the employees.
The petitioner has given explanation to the charge memo and participated in
the enquiry. The second respondent passed an order dated 08.03.2004
removing the petitioner from service and as against this order, the petitioner
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W.P.No.9073 of 2011
preferred an appeal to the first respondent State Government in the Month of
May 2004. Since no orders have been passed by the 1st respondent, the
petitioner filed W.P.No.10057 of 2005 and by order dated 24.03.2005, this
Court directed the first respondent to consider and pass orders on the appeal
dated 11.05.2004 made by the petitioner within a period of 12 weeks from the
date of receipt of a copy of the order.
4. The learned counsel further submitted that after the orders of this
Court, the first respondent has passed orders in G.O.(2D) No.52, dated
19.02.2006 rejecting the appeal made by the petitioner based on the opinion
given by the Tamil Nadu Public Service Commission. The learned counsel
further submitted that subsequently the petitioner has also filed a Revision
Petition before the State Government by referring to the fact that he is the
father of three girl children. However, the Revision Petition filed by the
petitioner was also rejected in G.O (2D) No.224, Agriculture (Agri.Busi.5)
Dept. dated 06.10.2008. The petitioner has made further Revision Petition to
the Government in the year 2009 which was forwarded by the 2nd respondent
on 21.08.2009 to the first respondent. However, the first respondent has issued
G.O.(2D) No.83, Agriculture (Agri.Marketing) Dept dated 23.03.2010 again
rejecting the Revision Petition filed by the petitioner stating that there are no
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W.P.No.9073 of 2011
fresh reasons stated to consider the claim of the petitioner. The learned counsel
further submitted that the actual shortage in remittance was only a sum of
Rs.1,788.10/-. The learned counsel drew the attention of this Court to the order
passed by the second respondent dated 08.03.2004 removing the petitioner
from service in which the explanation given by the petitioner is mentioned
stating that while withdrawing the amount from the Bank he did not notice the
shortage of amount, later on he came to know that there was shortage in the
money withdrawn by him and the amount to be paid by the petitioner was only
a sum of Rs.1,788.10. The learned counsel further submitted that only on the
admission made by the petitioner, the shortage amount of Rs.1,788.10 was
brought to the knowledge of the respondents. The petitioner was also
superannuated in the year 2017. The learned counsel for the petitioner relied
upon the judgment of this Court in the case of N.Saravanakumar Vs The
Government of Tamil Nadu Rep.by its Secretary and others W.P.No.29030 of
2015 and the relevant paragraphs are extracted as hereunder:-
22.The allegations in both the writ petitions are
similar and only the amount varies. As rightly pointed out by
the Learned Counsel appearing for the petitioner the
allegations as such will not amount to misconduct. Even
according to the audit report and the report of the said
Eswaramoorthy there is no allegations of misappropriation
against the petitioner. To constitute misconduct there ought to
be intention to defraud the bank and no such ingredient is
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W.P.No.9073 of 2011
stated in the enquiry report, in the audit report or in the
report of the said Eswaramoorthy. The case of charges in
disciplinary proceedings was dealt in W.P.No.29030 of 2015
in N. Saravanakumar Vs. the Government of Tamil Nadu and
others, the Hon?ble Court vide order dated 30.09.2015 has
held as under:
16. It is very pertinent to point out at this juncture that
the allegation merely pertains to loss of revenue to the State
and no ill~will or motive or corrupt practice has been levelled
against the petitioner except the general charge, namely
Charge No.8 which speaks about Rule 20(1) of the Tamil
Nadu Government Servants Conduct Rules, 1973. In the
considered opinion of the Court, the charges framed against
the petitioner are vague and admittedly, Annexure~II to the
charge memo would also indicate that even prior to the tenure
of the petitioner also, such alleged lapses took place, for
which, the concerned officials have not been proceeded with
and the said fact was also brought to the knowledge of the
Disciplinary Authority by the petitioner in his interim reply,
for which also, no response is forthcoming. Thus, on account
of vague and indefinite charges framed against the petitioner,
he is put to grave prejudice and hardship in 16 defending the
charges framed against him.
17. It is also the submission of the learned Senior
Counsel appearing for the petitioner that in the absence of
any specific or definite allegation that discharge of official
duty was with dishonest motive or exercise of official position
for personal gain, charges under Rule 17(b) of the TNCS
(D&A) Rules cannot be framed. The guidelines framed in this
regard is referred to in the Division Bench Judgment of
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W.P.No.9073 of 2011
Madurai Bench of this Court in W.P.(MD).No.6809 of 2004
and it is relevant to extract the same:
“32....The instructions were quoted as follows:
“Without prejudice to the generality of situations
involving indiscipline, moral turpitude, corruption, etc.,
Charges under Rule 17(b) has to be framed in the following
types of cases for imposing any one of the major penalties“-
1.Cases in which there is reasonable ground to believe
that a particular offence has been committed by a
Government Servant but the evidence forthcoming is not
sufficient for prosecution in a Court of Law, e.g.,
[a]Possession of assets disproportionate to the known source
of income; [b]Obtaining or attempting to obtain illegal
gratification; [c]Misappropriation of Government property,
money or shares; [d]Obtaining or attempting to obtain any
valuable thing or pecuniary advantage without consideration,
which is not adequate, etc.
2.Falsification of Government Records.
3.Irregularity or negligence in the discharge of official
duties with a
dishonest motive.
4.Misuse of official position for personal gain.
5.Disclosure of secret or confidential information even
17 though it does not fall strictly within the scope of the
official secrets act.
6.Misappropriation of Government Funds, false
claims of travelling allowance reimbursement of false medical
bills etc.,“
As already pointed out, on account of vagueness of
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W.P.No.9073 of 2011
charges and in the absence of any specific allegation that
negligence on the part of the petitioner in discharging his
official duty was actuated with dishonest motive or he
exercised his official position with personal gain, charges
under Rule 17(b) of the TNCS (D&A) Rules, cannot be
framed.?
In the present case also there is no allegation that the
petitioner while discharging his official duty had committed
with dishonest motive or he exercises his official position
with personal gain, hence the charges cannot be sustained at
all.
23. Therefore this Court is of the considered opinion
the impugned orders ought to be quashed. Hence the writ
petitions W.P.(MD)No.10608 of 2016 and W.P.(MD)No.
10609 of 2016 are allowed. The impugned orders in both the
writ petitions are quashed and the respondents are directed
to confer all monetary benefits, service benefits including
notional promotion to the petitioner. The said exercise shall
be completed within a period of six weeks from the date of
receipt of the copy of the order.
5. The learned counsel for the petitioner relied upon the judgment of
this Court in another case in W.P.(MD).Nos.10608 and 10609 of 2016
P. Sampath Kumar Vs The Chairman and Managing Director, Corporate
Office, Indian Bank, Chennai and the relevant paragraph is extracted
hereunder:-
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W.P.No.9073 of 2011
23. In the considered opinion of the Court, in the
absence of specific imputation of dishonest/oblique motive,
lack of bonafide or utter negligence in discharge of duties,
initiation of disciplinary proceedings is required to be
quashed. The allegations pertains to the alleged act of the
petitioner during his tenure as Commercial Tax Officer,
Melur Assessment Circle for the period between 30.07.2012
and 31.12.2012 and in pursuant to the orders passed in
W.P.Nos.11129/2013, 11324/2013 and 20336 of 2013, the
petitioner and others were promoted as Assistant
Commissioners and this Court is of the view that subsequent
promotion of the petitioner has also washed out his alleged
delinquency. The petitioner alone has been proceeded with
for the reasons best known to the Disciplinary Authority and
that apart, the charges framed against the petitioner are also
very vague and in the absence of any specific allegation as to
dishonest/oblique motive or deliberate act of negligence or
undue favour shown, the impugned charge memo cannot be
sustainable.
6. A counter affidavit was filed by the third respondent on 01.04.2022.
The learned Special Government Pleader appearing for the third respondent
submitted that the petitioner has not informed the third respondent about the
shortage of amount of Rs.30,000/- on the same day. It is only when the
inspection was made by the third respondent it was found that the writ
petitioner has misappropriated the money of the employees temporarily and
remitted the amount belatedly after a delay of 586 days and the
misappropriated amount was Rs.1,788.10. The petitioner was placed under
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W.P.No.9073 of 2011
suspension on 06.04.2000, subsequently charges were framed on 13.09.2000
against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services
(D&A) Rules and the petitioner submitted his explanation on 21.09.2000 and
remitted the amount of Rs.1788.10 on 05.10.2000. The petitioner was
reinstated into service on 07.05.2001 pending disposal of the disciplinary
action. The Secretary, Chengalpattu Market Committee, Kanchipuram was
appointed as the enquiry officer in the disciplinary case and submitted his
enquiry report on 30.04.2002 and the copy of the Enquiry Report was also
furnished to the petitioner for his further explanation and he has submitted his
explanation on 01.08.2002. Finally, the second respondent has passed the order
removing the petitioner from service vide his proceedings
No.DCI1/9564/2000(2) dated 08.03.2004. The learned Additional Government
Pleader further submitted that the petitioner preferred an appeal to the first
respondent on 11.05.2004 challenging the order of removal from service and
the Government rejected the same based on the recommendation of the TNPSC
vide G.O.No.(2D) No.52 Agriculture (AM I) Department dated 19.04.2006.
The petitioner made another appeal petition to the Government requesting for
reemployment and the Government carefully examined the appeal of the
petitioner and decided to reject the same vide G.O.No.(2D) No.224 Agriculture
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W.P.No.9073 of 2011
(AA 5) Department dated 06.10.2008 since no new grounds or acceptable
reasons were mentioned in the appeal petition. The learned Additional
Government Pleader further submitted that the petitioner filed a Review
Petition to the Government to reconsider the petitioner's punishment of
removal and requested the Government to reduce the punishment awarded to
him and the review petition was also rejected by the Government vide
G.O.No.(2D) No.83 Agriculture (AM I) Department dated 23.03.2010 since
there was no new ground or acceptable reasons in the appeal petition.
7. Heard both sides and perused the materials available on record.
8. In this case the petitioner was working as a Junior Assistant in Head
Office of Salem Market Committee and in the year 1998 when he was drawing
salary amount for the employees from the State Bank of India, Salem Branch
there was shortage of amount of Rs.30,000/- and the same was not noticed by
the petitioner at the time of receiving the money. The charge memo dated
13.09.2000 was served on the petitioner on four counts pertaining to the
belated payment of the advance and loan amounts recovered from the salaries
of the employees. The charge relates only to a meagre amount of Rs.1,788.10
and the petitioner has also paid the same after a delay of 586 days on
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W.P.No.9073 of 2011
05.10.2000. The enquiry was conducted and the enquiry officer has filed the
report that the charges are proved and based on the enquiry report the second
respondent passed an order dated 08.03.2004 removing the petitioner from
service. The appeal to the first respondent, appeal to the Government and the
Review Petition to the Government were all rejected vide G.O.No.(2D)No.52
Agriculture (AM I) Department dated 19.04.2006, G.O.No.(2D) No.224
Agriculture (AA 5) Department dated 06.10.2008 and G.O.No.(2D) No.83
Agriculture (AM I) Department, dated 23.03.2010 respectively. In this case the
delinquency committed by the petitioner is misappropriation of a meagre sum
of Rs.1788.10 which was also repaid by the petitioner after a delay of 586 days
and for this, the punishment of removal of service imposed by the second
respondent is too harsh and disproportionate.
9. It is pertinent to note that no documents have been filed to prove that
the petitioner has misappropriated a sum of Rs.1788.10 and it is only on
admission by the petitioner the respondents came to know about the actual
shortage in remittance due to the mistake in calculation. The petitioner was 52
years old at the time of filing the writ petition and during the pendency of the
writ petition he got superannuated in the year 2017. The actual shortage was a
sum of Rs.1788.10 and the same was not found by the auditing or any other
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W.P.No.9073 of 2011
inspection team and it is only on the admission made by the petitioner that due
to the mistake in calculation there is a shortage of the above amount. The
petitioner has not suppressed and he has fairly admitted that there is a shortage
of a sum of Rs.1788.10 but the same was not paid immediately and it was
remitted only after 586 days.
10. Hence, this Court is of the considered view that the punishment
imposed on the delinquent removing him from service is too harsh and
disproportionate to the delinquency committed by him and the delinquency
committed is a temporary misappropriation of a meagre amount of Rs.1788.10
which is the actual shortage which was admitted by the petitioner himself and
was not found by the audit team or the inspection team of the respondents. On
this ground, the respondents ought to have taken a lenient view by imposing
punishment under Rule 17(a) of the Tamil Nadu Civil Services (Discipline &
Appeal) Rules instead of imposing the major punishment, viz., removal from
service under Rule 17(b), ibid.
11. In view of the above, the orders impugned in this writ petition are
quashed. The respondents are directed to pay all consequential and attendant
benefits to the petitioner within a period of six weeks from the date of receipt
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W.P.No.9073 of 2011
of a copy of this order. Since the petitioner had retired in the year 2017, the
question of his reinstatement does not arise.
12. In the result, the writ petition stands allowed. No costs.
Consequently connected miscellaneous petition is also closed.
01.06.2023
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
dpq
To
1. The Commissioner of Agriculture – cum
Secretary to Government,
Agriculture Department,
Secretariart,
Chennai 600 009
2. The Commissioner of Agricultural Marketing
and Agri Business,
Guindy,
Chennai 600 032
3.The Secretary,
Salem Market Committee,
Salem-16
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W.P.No.9073 of 2011
J. SATHYA NARAYANA PRASAD, J.
dpq
W.P.No.9073 of 2011
01.06.2023
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