Madras High Court

N. Sivalingam vs The State Of Tamil Nadu on 19 September, 2023

                                                                                      W.P.No.15624 of 2021



                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 19.09.2023

                                                            CORAM:

                 THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD

                                                   W.P.No.15624 of 2021

                N. Sivalingam                                                            ... Petitioner

                                                             Vs.

                The State of Tamil Nadu
                Rep.by its Additional Chief Secretary and
                Government,
                Home (Transport II) Department, Secretariat,
                Chennai 600 009.                                                       ... Respondent


                                  PRAYER : Writ Petition filed under Article 226 of Constitution of
                India, seeking Writ of Certiorarified Mandamus directing the respondent to call
                for the records of the respondent in connection with the impugned order passed
                by him in G.O.(2D) No.20, Home (Tr.II) Department dated 29.01.2021 and
                quash the same and consequently direct the respondent to permit the petitioner
                to retire from service and settle the pensionary benefits and other benefits
                entitled to him.
                                           For Petitioner      : Mr.A.Ganesan
                                                                 Senior Counsel
                                                                 for Mr.K.M.Ramesh

                                           For Respondents     : Mr.M.Shahjahan
                                                                 Special Government Pleader

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                                                                                         W.P.No.15624 of 2021




                                                          ORDER

The petitioner has filed the above writ petition praying for a Writ of

Certiorarified Mandamus directing the respondent to call for the records of the

respondent in connection with the impugned order passed by him in G.O.(2D)

No.20, Home (Tr.II) Department dated 29.01.2021 and quash the same and

consequently direct the respondent to permit the petitioner to retire from service

and settle the pensionary benefits and other benefits entitled to him.

2. The case of the petitioner is that he was working as Deputy

Transport Commissioner, Salem and on 05.02.2007 the respondent has issued

orders for initiating Common Disciplinary Proceedings against the petitioner

and other 42 officials who were all working in the office of the Regional

Transport Office, Tiruppur under Rule 9A of the Tamil Nadu Civil Services

(Discipline and Appeal) Rules in G.O.(D).No.154, Home (Tr.II) Department

alleging certain irregularities committed in collection of fees and tax etc.,

against them. A charge memo dated 13.08.2007 was issued to the petitioner and

also to all other 42 officials with similar charge memo by the respondent. On

28.10.2008, the petitioner was suspended from service by the respondent and

subsequently on 31.10.2008 the petitioner was not allowed to retire from https://www.mhc.tn.gov.in/judis

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service on superannuation and retained in service till the disciplinary

proceedings against him is disposed of. The respondent passed an impugned

order in G.O.(2D)No.20, Home (Tr.II) Department dated 29.01.2021 imposing

major punishment of “Removal from Service”. Aggrieved by the above order,

the petitioner has come forward with the present writ petition.

3. The learned senior counsel appearing for the petitioner submitted

that though disciplinary proceedings were initiated against 42 officials apart

from petitioner for certain irregularities committed in collection of fees and tax

etc., the Commissioner, Tribunal for Disciplinary Proceedings, Coimbatore

conducted the enquiry against the petitioner and other delinquents and

submitted his enquiry report No.53 of 2008 to the respondent on 30.01.2009,

wherein he has held that the charges against the petitioner is proved. The

respondent aggrieved with the findings communicated a copy of the enquiry

report to the petitioner on 11.01.2010 for sending further representation to the

respondent. On 26.02.2010, the petitioner submitted his further representation

to the respondent against the findings of the Enquiry Officer and requested to

drop the charges against him. The learned senior counsel further submitted that

since the respondent was keeping the petitioner's disciplinary proceedings with

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him for more than 5 years from the year 2010, the petitioner filed writ petition

before this Court for relief. On 24.04.2015 this Court passed an order in

W.P.No.12201 of 2015 directing the respondent to pass final orders on the

disciplinary proceedings against the petitioner within 6 weeks from the date of

receipt of a copy of the order. The respondent neither passed orders on the

disciplinary proceedings against the petitioner nor filed petition before this

Court seeking extension of time to pass final orders but it was kept pending

with him indefinitely even after the orders passed by this Court on 24.04.2015.

The petitioner filed another W.P.No.15991of 2018 on 02.07.2018 before this

Court to quash the charge memo, but the case was not posted for hearing.

Hence, the petitioner was under mental agony due to his suspension for more

than 10 years and for the pendency of the disciplinary proceedings with the

respondent indefinitely.

4. The learned senior counsel further submitted that the petitioner

approached the office of the respondent Department for early disposal of the

Disciplinary Proceedings against him. The respondent office informed him that

the final orders could be passed only after the case filed by him in

W.P.No.15991 of 2018 is withdrawn, the final orders will be passed.

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Subsequently on 18.10.2019, the petitioner withdrew W.P.No.15991 of 2018

from this Court and approached the respondent office for early disposal of the

Disciplinary Proceedings pending against him by the respondent. But the

respondent never passed orders thereon. Thereafter, in the year 2019, the

petitioner filed a contempt petition No.1526 of 2019 against the respondent for

not having complied with the orders of this Court passed in W.P.No.12201 of

2015 dated 24.05.2015 and the said contempt petition is pending before this

Court and lastly posted on 02.01.2020. Thereafter on 29.01.2021 to his shock

without reference to the orders passed by this Court against the respondent in

W.P.No.12201 of 2015 dated 24.05.2015 and the contempt petition filed

against the respondent for not having complied with the orders within the time

granted by this Court and suppressing the above facts, the respondent passed an

order in G.O.(2D) No.20, Home (Tr.II) Department dated 29.01.2021 imposing

him the major punishment of 'Removal from Service'.

5. The learned senior counsel further submitted that though the

common disciplinary proceedings were initiated against 42 delinquents by the

respondent, the charge memo against them are all similar and identical to one

another. Whereas out of 43 delinquents, the respondent dropped charges against

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19 delinquents, 'censure' punishment imposed against 3 delinquents, minor

punishment of stoppage of increments without cumulative effect ordered

against 9 delinquents, 8 delinquents were allowed to retire from service without

prejudice to disciplinary proceedings pending against them and thereafter they

were imposed cut in pension ranging from Rs.100/- to Rs.800/- for the period

ranging from 6 months to 5 years. Three delinquents against whom the

respondent imposed the punishment of stoppage of increment without

cumulative effect for 2 years filed writ petition No.25314 of 2011 etc., before

this Court and this Court quashed the punishment order on the ground of

discrimination and for violation of the concept of equality in common order in

W.P.No.25314 of 2011 dated 13.12.2012. The respondent has also complied

with the orders of this Court and dropped the punishment against the writ

petitioner.

6. The learned senior counsel further submitted that the respondent

dropped the charge memo against one of the delinquents who was also a

Regional Transport Officer in Tiruppur similar to that of the petitioner. Similar

and identical charge memo as that of the petitioner was served to him. Similarly

there are two other delinquents, against whom charges were proved and charges

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were dropped by the respondent. The respondent has neglected the orders of

this Court to comply with in favour of the petitioner and disrespected this Court

to comply the same within the time granted by this Court. Further, the

respondent has issued a vague and bald charge memo against the petitioner.

The inquiry officer adopted a strange procedure against the provisions of the

Tamil Nadu Civil Service (Discipline and Appeal) Rules and his report is a case

of no evidence and violation of principles of natural justice.

7. The learned senior counsel further submitted that failure on the

part of the respondent to comply with the orders of this Court passed in

W.P.No.12201 of 2015 dated 24.05.2015 is against the law held by the

Supreme Court of India in W.P.No.14054 and 30805 of 1988 in SLP (C)

No.2103 of 1987 dated 01.09.1989. The learned senior counsel would further

submit that following charges were framed against the petitioner and other

delinquents and the same are extracted as hereunder:-

“Charge – I

During your tenure as Regional Transport Officer/Registering Authority at Regional Transport Office, Tiruppur, it has been found that the life time tax, registration fees and fee for reservation of advance registration numbers for the new vehicles registered during the period were not actually paid in the office, but the vehicles were registered and advance

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registration numbers have been allotted based on bogus receipts as from Regional Transport Office prepared using some cash trac machine and the petitioner has miserably failed to verify whether the fee for registration as per Rule 81 of the CMV Rules, fee for reservation of advance registration number as per Rule 132 of TNMV Rules and tax as per Section 4(1-A)(a) of TNMVT Act was paid correctly. Being the head of office and Registering Authority the petitioner is responsible for the overall supervision of the office and the petitioner has failed to cross check the total number of vehicles registered with reference to the daily abstract of cash trac receipts. Instructions have been issued by the Transport Commissioner in Circular No.40/2001, requesting the Regional Transport Officers to ensure that the registers relating to the accounts and related matters are properly maintained and thoroughly checked. Non adherence to the instructions in this case has resulted in pecuniary loss to Government to the tune of Rs.24,48,202/- during the petitioner's tenure at Regional Transport Office, Tiruppur. Hence the petitioner along with others working in the office during the period under reference are responsible for the above loss of revenue to Government.

Charge II

During the above period while you were functioning as Regional Transport Officer, Tiruppur it has been found that advance registration numbers were allotted based on fake Government Orders produced by the parties. The registration numbers should have been allotted only after the receipt of such orders directed from the Government without solely relying on the copies of orders purported to have been issued by Government and produced by the parties. Non adherence to the laid down general procedure facilitated the allotment of advance registration numbers based on fake Government orders.

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Thus, you have failed to ensure observance of laid down procedures and also filed to detect the fake Government Orders produced for allotment of advance registration numbers.

Charge - III

As per Circular 38/99 issued by the Transport Commissioner, Chennai the dealer should present the application for registration to the Motor Vehicles Inspector who in turn will verify the vehicle and the application and if the vehicle and application are found to be in order, the application should be given to the applicant after affixing the seal in the application for registration in Form 20 stating that the application and the vehicle are in order and tax and fee can be collected. The Shroff after collection of tax and fees should hand over the application to the concerned Motor Vehicles Inspector who will in turn certify and allot the registration numbers. But in these cases, this system was not followed. The petitioner the head of office should have supervised whether the circular instructions are strictly followed and the above failure has resulted in loss of revenue to Government as stated in Charge – 1”.

8. Though, common disciplinary proceedings were initiated against

the delinquents including the petitioner, nearly all the delinquents against

whom the charge memo issued were either the charges dropped or imposed

with minor punishment or permitted to retire from service and then imposed a

meagre amount of pension cut for a short period on the charges by the

respondent. Whereas the petitioner who is the only person against whom the

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respondent imposed with the major punishment of 'Removal from Service' for

which the respondent took nearly 14 years to pass final orders which is an act

of discrimination and a clear violation of the concept of equality as enshrined in

Article 14 of the Constitution of India. This Court has already set aside the

punishment orders passed against three of the delinquents in the common

disciplinary proceedings in common order passed in W.P.No.25314 of 2011

dated 13.12.2012. The said order of this Court is squarely applicable to the

petitioner.

9. The learned senior counsel further drew the attention of this Court

to the order dated 27.09.2010 passed by the respondent dropping the charges

against S.Panneerselvam, Regional Transport Officer and Head of Office in the

O/o.The Regional Transport Office, Tiruppur, whereas the petitioner was issued

with same type of charge memo in the year 2007 which was similar and

identical charge memo issued by the respondent to Thiru.S.Panneerselvam,

Regional Transport Officer. The learned senior counsel also submitted a copy

of the letter No.58590/J2/2007 dated 10.12.2008 written by the Principal

Secretary/Transport Corporation, Chennai - 5 to the Principal Secretary to the

Government, Home (Transport) Department, Chennai – 9 informing that the

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W.P.No.15624 of 2021

entire process of collection as pointed out in the “fake receipt scam” case at

Regional Transport Office, Thiruppur was completed and the amount to be

collected is Nil. The learned senior counsel further submitted that as per the

charges and as per AAO report dated 03.04.2008, the loss caused by

S.Panneerselvam, RTO, Tiruppur is a sum of Rs.55,17,630/- and the amount

was collected from the vehicle owners since the same is evident by letter issued

by the Transport Commissioner, Chennai. But the charges were dropped against

him by the respondent, in regard to the monetary loss caused by the petitioner is

a sum of Rs.24,48,202/- which is Rs.30,00,000/- lesser than the monetary loss

caused by one S. Panneerselvam, RTO, Tiruppur and the amount was collected

from the vehicle owners.

10. The learned senior counsel again reiterated that the major

punishment of “Removal from Service” was ordered by the respondent on

29.01.2021 against the petitioner only, he alone was imposed with a major

punishment but as far as the other 42 delinquents are concerned, the respondent

dropped charges against 19 delinquents, 'censure' punishment imposed against

3 delinquents, minor punishment of stoppage of increments without cumulative

effect ordered against 9 delinquents, 8 delinquents were allowed to retire from

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service without prejudice to disciplinary proceedings pending against them and

thereafter they were imposed cut in pension ranging from Rs.100/- to Rs.800/-

for the period ranging from 6 months to 5 years. Three delinquents against

whom the respondent imposed the punishment of stoppage of increment

without cumulative effect for 2 years filed writ petition No.25314 of 2011 etc.,

before this Court and this Court quashed the punishment order on the ground of

discrimination and for violation of the concept of equality in common order in

W.P.No.25314 of 2011 dated 13.12.2012. Charges were framed against the

petitioner as well as against S.Paneerselvam, RTO, Thiruppur. The charge

memo issued to S.Paneerselvam, RTO, Tiruppur is similar and identical charge

memo as that of the petitioner and pecuniary loss caused by the petitioner is

sum of Rs.24,48,202/- and the petitioner was imposed with a major punishment

of removal from service and the respondent took nearly 160 months to pass

final order against the petitioner, whereas the charges framed against

S.Panneerselvam, RTO was finalised in 38 months which is violation of the

concept of equality as enshrined in Article 14 of the Constitution of India. A

clear discrimination was shown by the respondent taking different decisions

among the delinquents. While charges were framed after 9 years of the incident,

there was no explanation in the charge memo regarding the delay in framing the

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charges. The alleged pecuniary loss was collected from the vehicle owners and

paid to the Government exchequer/Home Secretary vide letter sent by

Transport Commissioner to Principal Secretary to Government, Home

(Transport) Department, Chennai vide Lr.No.58590/J2/2007 dated 10.12.2008.

11. Counter affidavit dated 02.12.2022 was filed on behalf of the

respondent and it is relevant to extract the following tabular columns-

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12. The learned Special Government Pleader appearing for the

respondent submitted that the punishment of Removal from Service imposed on

the petitioner is based on the gravity of charges. The delay in imposing the

punishment on the petitioner is only due to various writ petitions filed by

N.Sivalingam, Deputy Transport Commissioner, formerly Regional Transport

Officer, Tiruppur against which writ appeal was filed before this Court. The

charge framed against the petitioner is specific incorporating the duties

entrusted to the petitioner under the Motor Vehicles Act, 1988 and his

negligence in performing his official duty, which has ended up in loss to the

Government to the tune of Rs.24,48,202/-. The charges framed against the

petitioner was based on the special audit team report and it is not vague in

nature and the reported judgment in 2011 (5) CTC 564 in case of Anil Gilurker

Vs. Bilaspur Raipur Kshetria Gramin Bank is not applicable in this case. The

charges are very clear and there was commission of act that the petitioner has

failed to detect the loss of revenue to the Government and has not taken any

action to curb such losses. It is submitted that the petitioner shifting his

responsibility from his shoulder to his subordinates. This could not be

considered as a fair one and the petitioner was fastened with vicarious liability.

It is the bounden duty of the petitioner to supervise the subordinates in

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discharging their official duties.

13. The learned Special Government Pleader further submitted that

the petitioner has failed in all manner of supervising his subordinates and failed

to curtail the loss of revenue to the Government. It is submitted that no

effective steps were taken by the petitioner while he was in service as Regional

Transport Officer, Tiruppur and the Government order imposing the

punishment upon the petitioner is a speaking order and there is no flaw found

by the petitioner. The further representation submitted by the writ petitioner has

been taken into account, while imposing the punishment of “Removal from

Service” on him. It is submitted that among all the delinquent officials involved

in this case, the writ petitioner was imposed with the punishment of “Removal

from Service” by taking into consideration the gravity of the offence committed

by him.

14. Heard both sides and perused the materials available on record.

15. In this case on 05.02.2007 the respondent has issued orders for

initiating Common Disciplinary Proceedings against the petitioner and other 42

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officials who were all working in the office of the Regional Transport Officer,

Tiruppur alleging with certain irregularities committed in collection of fees and

tax etc., The main allegation against the petitioner is that he caused pecuniary

loss to the Government to the tune of Rs.24,48,202/- during his tenure of

service as Regional Transport Office, Tiruppur. Being the head of office and

Registering Authority the petitioner is responsible for the overall supervision of

the office and the petitioner has failed to cross check the total number of

vehicles registered with reference to the daily abstract of cash trac receipts. The

other charge against the petitioner is that advance registration numbers were

allotted based on fake Government Orders produced by the parties. The other

charges against the petitioner is that procedures were not followed by the

petitioner as an approval authority and the circular and instructions issued by

the respondent was not complied with by the petitioner and he has also failed to

maintain absolute integrity and devotion to duty and contravened the provisions

of rule 20(1) and (2) of the Tamil Nadu Government Servants Conduct Rules,

1973. In this case there were 43 delinquents, out of which the respondent