Madras High Court

P. Manoharan vs The Commissioner Of Municipal ... on 19 September, 2023

                                                                                        W.P.No.9740 of 2020



                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 19.09.2023

                                                             CORAM:

                 THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD

                                                     W.P.No.9740 of 2020

                P. Manoharan                                                              ... Petitioner

                                                              Vs.

                The Commissioner of Municipal Administration
                M.R.C.Nagar,
                Chennai.                                                                ... Respondent

                                  PRAYER : Writ Petition filed under Article 226 of Constitution of
                India, seeking Writ of Certiorarified Mandamus calling for the records
                pertaining to the impugned list of approved panel for the promotion to the post
                of      Assistant        Executive    Engineer      for   the   year   2019-20       vide
                R.O.C.No.28618/2019/F1 dated 17.02.2020 and the impugned proceedings in
                Na.Ka.No.28618/2019/F1 dated 09.03.2020 of the respondent and consequently
                direct the respondent to add the petitioner's name in the list of approved panel
                for the promotion to the post of Assistant Executive Engineer for the year 2019-
                20 afresh and consider his promotion in accordance with law.


                                           For Petitioners      : Ms.R.Rebecca Vasanthiripery
                                                                  for Mr.D.R.Arun Kumar

                                           For Respondents      : Mr.K.Tamilvendan
                                                                  Government Advocate
https://www.mhc.tn.gov.in/judis
                1
                                                                                          W.P.No.9740 of 2020




                                                          ORDER

This Writ Petition has been filed seeking to call for the records

pertaining to the impugned list of approved panel for the promotion to the post

of Assistant Executive Engineer for the year 2019-20 vide

R.O.C.No.28618/2019/F1 dated 17.02.2020 and the impugned proceedings in

Na.Ka.No.28618/2019/F1 dated 09.03.2020 of the respondent and consequently

direct the respondent to add the petitioner's name in the list of approved panel

for the promotion to the post of Assistant Executive Engineer for the year 2019-

20 afresh and consider his promotion in accordance with law.

2. The learned counsel for the petitioner submitted that the petitioner

was working as a Municipal Engineer in the Pernamput Municipality and had

the unblemished records of 29 years of service except an order of “Censure”

passed by the respondent on 14.09.2018 for no fault on his part while he was

working as Assistant Engineer (Municipal), Aranthangi Municipality. He was

also incharge of the Municipal Commissioner at the time of alleged commission

of delinquency and one Tmt.Seema, Assistant Engineer was solely responsible

for the charges framed. The respondent herein has published the list of panel

for the promotion to the post of the Assistant Executive Engineer for the year https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

2019-2020 on 17.02.2020. Even though the petitioner was fully eligible for the

promotion, his name was not included in the said list on the ground that he was

awardee with a punishment of censure on 12.09.2018 and the one year

punishment was not completed as on the crucial date i.e., 15.03.2019. The

learned senior counsel further submitted that the petitioner has deprived the

chance of getting promoted in the two panels approved on 17.02.2020 i.e., for

2018-2019 & 2019-20 and he has sent his objection to the respondent on

24.02.2020 since the punishment of censure has no role to play in the

promotion based on seniority for a non-selection post of the Assistant

Executive Engineer. The respondent has overruled the petitioner's objection and

passed the impugned order dated 09.03.2020. The learned counsel drew the

attention of this Court to the charge memo issued to the petitioner and the

details of the charges framed are as follows:-

Charge No.1

“ that you had failed to commence to erect the 19 nos. of bore wells

out of 27 nos. with mini power pumps on 30.04.2014, since the work orders

were already issued on 08.04.2014 under State Disaster Relief Fund and

Municipal General Fund after lapse of three weeks”.

https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

Findings of the enquiry officer for Charge No.1

The Work order was issued on 08.04.2014 to one Thiru.Sathyaseelan

for drilling of 27 bore wells and erection of mini power pumps and a copy of

the work order was served to Tmt.K.Seema, Assistant Engineer, so as to

oversee and complete the execution of the works expeditiously. As a Municipal

Engineer the petitioner's responsibility is inspecting and check-measuring all

the works being carried out in the Municipality. He has given instructions to the

Assistant Engineer to speed up the work and complete them in the scheduled

time. As she has not heeded to the advices, several memos were issued to her

and wrote letters to the District Collector, Pudukottai and Director of Municipal

Administration to transfer the Assistant Engineer. The petitioner for the poor

progress in execution of the work issued memo to Assistant Engineer

Tmt.Seema, but she never cared to submit her explanation. The petitioner also

stated that the cause of delay was not out of wanton act or negligence on his

part but of the lethargic attitude of the Assistant Engineer Tmt.Seema which is

out of his bounds. Even though, the Assistant Engineer is solely responsible for

non execution of work, as a supervising officer, the Delinquent Officer might

have taken necessary steps other than issuing memos to Assistant Engineer,

https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

notices to the contractor etc., since he is also responsible for the delay in

execution of the work. Hence this charge is held as proved.

Charge No.2

“that you failed to commence to replace the water supply distribution

pipe line for 6.00 km on 30.04.2014 since the work orders were already issued

on 08.04.2014 under State Disaster Relief fund and Municipal General Fund

after lapse of three weeks”.

The findings of the enquiry officer for Charge No.2

From the reports received from the Municipal Commissioner

(incharge), it is ascertained that the works have been completed only after 4

months of the due date (23.04.2014) ie., on 12.08.2014. However, the delay is

not only on the part of Municipal Engineer but the Assistant Engineer is also

responsible. Hence, in my opinion disciplinary action might have taken against

the Assistant Engineer also. Hence, the charge is held as proved.

Charge No.3

“that you are not paying the personal attention to provide the water

https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

supply to the public during the summer season on war foot basis”.

Findings of the enquiry officer for Charge No.3:

Pudukottai district also shows that during April 2014, the water

supplied through different sources and the frequency of water supply is 100

LPCD once in daily. Hence the charge that the delinquent officer has not paid

personal attention to provide water supply to the public during summer does

not hold good. Hence, this charge is held as not proved.

Charge No.4

“that as you are holding the higher responsible post for the public

service, you are responsible for neglecting and ignoring the instructions of the

higher officials”.

Findings of the Enquiry Officer for Charge No.4

The records produced shows that the Delinquent Officer has taken

action to comply with the instructions of higher officials. Hence, it is clear that

he has not neglected or ignored the instructions of the higher officials. Hence,

the charge is held as not proved.

https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

Charge No.5

“that you are derelicted from the integrity and devotion to duty, as per

Rule 20 of Tamil Nadu Government Servants Conduct Rules, 1973”.

Findings of the Enquiry officer for Charge No.5

The delinquent officer has taken action to start the work by issuing

memos to the Assistant Engineer and notices to the contractor. He informed the

Commissioner of Municipal Administration and District Collector about the

lethargic attitude of the Assistant Engineer towards her duties and requested to

transfer her from Aranthangi Municipality on 30.04.2014 and 09.05.2014

respectively. From the defence statement and action taken by the Delinquent

Officer, it is concluded that he has not derelicted from the integrity and

devotion to duty. Hence, this charge is held as not proved.

3. The learned counsel appearing for the petitioner drew the attention

of this Court to the impugned order dated 09.03.2020 vide

Na.Ka.No.28618/2019/F1 and the relevant portion is extracted as below:-

https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

4. The learned counsel further submitted that a memorandum dated

28.05.2015 was issued to the petitioner to give reply towards the enquiry report

dated 23.04.2015 and in which it is stated that if the petitioner fails to submit

within 15 days on receipt of this memo it will be presumed that he has no

representation to make and further action will be on merits of the case and the

proceedings was passed by the respondent on 20.09.2018 after a lapse of three

years.

https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

5. In this context, the learned counsel relied upon the judgment of this

Court in W.P.No.9004 of 2016 dated 02.08.2018 and also relied upon the

judgment of the Hon'ble Supreme Court of India in the case of M.Raghavelu

Vs Governemnt of Andhara Pradesh and another reported in (1997) 10 SCC

779, wherein at para 2, 3 & 4 held thus:-

“2. The enquiry officer has found that the charge has been proved and he has also specifically stated in para 42 of his report as follows:

“But taking into consideration the fact that he is not actually in charge of the building construction, but only overall in-charge being the Exectuvie Engineer of the Panchayat Raj, it is hereby recommended to the Government that two increments may be stopped with cumulative effect as far as this charged officer is concerned.”

3. Accepting the recommendation of the enquiry officer, the disciplinary authority imposed the penalty as recommended. Against that, the appellant preferred a representation petition before the Tribunal without success. Hence the present appeal by special leave.

4. Mr.A.V.Rangam, learned counsel for the appellant, submits that the appellant was not factually in charge of the building construction, as admitted by the enquiry officer and as a matter of fact the persons, namely the Deputy Executive Engineer and the Supervisor, who were directly in charge of the building construction, were similarly charged for identical misconduct and on the same set of evidence, though in different proceedings, they were exonerated of the charge. The Government who is the punishing authority, accepting the recommendation, exonerated them of the charge”.

https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

6. Counter affidavit dated 04.11.2020 has been filed by the

respondent. The learned Government Advocate appearing for the respondent

submitted that while the petitioner was working as Municipal Engineer Grade-

III & Commissioner Incharge in the Aranthangi Municipality, he had not shown

any progress in the implementation of water supply distribution works in the

Aranthangi Municipality. In the absence of the Municipal Commissioner post

the Municipal Engineers were given Additional Charge to the post of the

Municipal Commissioner and there is no work burden as stated by the

petitioner. The petitioner has not shown any progress in the implementation of

Water supply distribution works. Due to the lethargic attitude and the work was

not completed within the estimated timeline and it causes great hardship to the

general public.

7. The learned Government Advocate further submitted that

moreover being the supervising authority of the said project the petitioner has

not taken any steps to complete the same within the prescribed timeline. Further

several complaints were received by the Collector, Pudukottai District against

the Municipality for non completion of work and the District Collector by his

letter in D.O.letter No.1224/A4/2014 dated 26.05.2014 has sent a report against

https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

the petitioner and requested to take severe action against the petitioner. Based

on the report of the District Collector, Pudukottai District the petitioner was

suspended from service by the proceedings of this respondent office in

Proceedings No.14625/2014/F1 dated 15.05.2014 and thereafter the same was

revoked. Further the departmental action was initiated against the petitioner and

Charge memo was issued to the petitioner under Rule 8(2) of Tamil Nadu

Municipal Service (Discipline & Appeal) Rules, 1970 and five charges were

levelled against him vide proceedings of this office in ROC.No.14625/2014/F1,

dated 26.06.2014. Further as per the proceedings of this respondent, the Joint

Director (Corporations) was appointed as Enquiry officer to inquire into the

charges and the enquiry officer submitted his report on 23.04.2015 and held

that charges 1 & 2 were proved and the remaining charges 3, 4 & 5 were not

proved. The enquiry officer report was communicated to the petitioner vide

proceedings dated 28.05.2015 and he has been requested to submit his further

defence in the above issue. But the petitioner has submitted his further

representation only on 19.06.2018 after a lapse of 3 years and thereafter being

the Disciplinary Authority this respondent has passed an order vide proceedings

ROC.No.14625/2014/F1 dated 12.09.2018 awarded the punishment of Censure

to the petitioner. It is submitted that subsequently this respondent as usual has

https://www.mhc.tn.gov.in/judis

W.P.No.9740 of 2020

published the panel to the post of Assistant Executive Engineer for the period

of 2019-2020 by his proceedings in ROC.No.28618/2019/F1, dated 17.02.2020

and the petitioner's name was not included in the panel for the reason that he

was imposed a punishment of Censure only on 12.09.2018 within one year

before the crucial date i.e., 15.03.2019. As per clause II – (14) under Schedule

XI of Tamil Nadu Government Servants (Conditions of Service) Act 2016, the

punishment of 'Censure' imposed on a member of service within a period of one

year proceeding the crucial date shall not be held against a member of service,

if the delinquency in respect of which such punishment is imposed had

occurred prior to give years proceedings the crucial date. In such cases the

name of the member of service shall be considered for inclusion in the

approved list. But in the case on hand the said five years period was also not

completed as the year of occurrence also within the said five years.

8. Heard both side and perused the materials available on record.

9. In the case on hand, the petitioner was the Commissioner incharge

of Aranthangi Municipality and the following charges were framed against him.