Madras High Court
G.Vedanayagam vs The Secretary To Government Of Tamil ... on 20 September, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.Nos.2313 of 2023 and 25420 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:20.09.2024
Coram
The HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.Nos.2313 of 2023 and 25420 of 2024
and
W.M.P. Nos.2381 to 2383 of 2023 and 284 of 2024
and 27792 of 2024
G.Vedanayagam .. Petitioner in
both W.Ps
Vs
1.The Secretary to Government of Tamil Nadu,
Rural Development and Panchayat Raj,
Fort St. George, Chennai – 9.
2.The Commissioner of Rural Development,
Saidapet, Chennai – 15.
3.The Collector,
Kancheepuram District,
Kancheepuram. .. Respondents
in both W.Ps
Prayer in W.P.No.2313 of 2023: Petition filed under Article
226 of the Constitution of India praying to issue a writ of certiorarified
mandamus to call for the records of the third respondent in its
Na.Ka.No.3667/2021/Pa.A1 dated 10.12.2022 and quash the same
and consequently direct the respondents to include and promote the
1/15
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W.P.Nos.2313 of 2023 and 25420 of 2024
petitioner as Assistant Director of Rural Development for the panel
year 2022-2023.
Prayer in W.P.No.25420 of 2024: Petition filed under Article
226 of the Constitution of India praying to issue a writ of mandamus
directing the respondents to fix the pay scale of the petitioner in the
appropriate pay scale/pay band of Assistant Director of Rural
Development with effect from 27.03.2023 and grant the same along
with arrears and other attendant benefits including increments.
For Petitioner : Mr.V.Vijay Shankar
in both WPs
For Respondents : Mr.P.Balathandayutham,
Special Government Pleader
in both WPs
COMMON ORDER
W.P.No.2313 of 2023 has been filed, challenging the impugned
proceedings of the third respondent dated 10.12.2022 and for
consequential direction to the respondents to include and promote the
petitioner as Assistant Director of Rural Development for the panel
year 2022-2023.
2. W.P.No.25420 of 2024 has been filed for the issue of writ of
mandamus directing the respondents to fix the pay scale of the
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W.P.Nos.2313 of 2023 and 25420 of 2024
petitioner in the appropriate pay scale/pay band of Assistant Director
of Rural Development with effect from 27.03.2023 and to pay the
arrears and extend all other attendant benefits.
3. The background of this case and the issue involved were
captured in the earlier order passed on 31.01.2023 and the same is
extracted hereunder:
'Mr.D.Ravichander, learned Special Government Pleader,
takes notice for the respondents.
2. A show cause notice came to be issued to the petitioner
by the third respondent on 04.02.2021 under Rule17(a) of the
Tamil Nadu Civil Service (Discipline and Appeal) Rules. The
allegation against the petitioner is that though the tender for
the construction of kitchen shed at the Panchayat Union Primary
School was called for and finalised on 20.01.2021, the work was
awarded only on 27.01.2021 instead of 22.01.2021. The
petitioner, on receipt of the notice, gave his reply wherein he
has taken a very specific stand that the last date for submission
of the tender was 20.01.2021 and the tender was opened on
21.01.2021 and the work order was issued on 22.01.2021 to the
lowest bidder.
3. The grievance of the petitioner is that the third
respondent proceeded to pass an order on 10.12.2022 by
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W.P.Nos.2313 of 2023 and 25420 of 2024
imposing a penalty of cancellation of increments for three
months.
4. On carefully going through the records, it is seen that
the third respondent has not even dealt with the very specific
stand taken by the petitioner to the effect that the work order
was issued on 22.01.2021 and the penalty has been imposed
against the petitioner. That apart, the matter was kept pending
for almost 18 months and all of a sudden, the penalty was
imposed and thereby, the opportunity of the petitioner to have
his name included in the panel for promotion as Assistant
Director in the Rural Development is at stake.
5. A prima facie case has been made out and there shall
be an order of interim stay as prayed for.
6. The name of the petitioner shall be included in the
panel for promotion to the post of Assistant Director in the
Rural Development for the year 2022-23 and the same will be
subject to the final result of the writ petition.
Post this case after four (4) weeks. In the mean time, the
respondents are directed to file their counter.'
4. The respondents have filed a petition to vacate the interim
order along with a counter affidavit. The third respondent has taken a
stand that the petitioner submitted a reply as if he issued the work
order on 22.01.2021 and whereas, on perusal of the records, it came
to light that the work order was not issued till 27.02.2021. Therefore,
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W.P.Nos.2313 of 2023 and 25420 of 2024
it was found that there was a delay in executing the tender work and
there were lapses on the part of the petitioner and the explanation was
not found to be satisfactory and ultimately, the punishment order was
passed imposing punishment of cancellation of increment for three
months without cumulative effect.
5. The other ground that has been raised in the counter affidavit
is that the petitioner has an efficacious alternative remedy before the
second respondent and without availing that remedy, the present writ
petition is not maintainable. Accordingly, the respondents have sought
for dismissal of W.P.No.2313 of 2023.
6. During the pendency of the writ petition in W.P.No.2313 of
2023, pursuant to the interim orders passed by this Court, name of the
petitioner was included in the panel year 2022-2023 and he was also
promoted to the post of Assistant Director of Rural Development. The
petitioner assumed charge on 27.03.2023. Despite assuming charge
and discharging his duties, the petitioner was not paid the pay
scale/pay band of Assistant Director and he was continued to be paid
lower pay scale. Aggrieved by the same, the petitioner has filed
W.P.No.25420 of 2024 seeking for appropriate direction.
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7. Heard Mr.V.Vijay Shankar, learned counsel for the petitioner
and Mr.P.Balathandayutham, learned Special Government Pleader for
the respondents.
8. The short issue that arises for consideration in the present
writ petitions is as to whether there was negligence/misconduct on the
part of the petitioner warranting imposition of punishment.
9. The third respondent issued administrative sanction on
09.01.2021 for construction of a new kitchen shed in the panchayat
union primary school in Thiruvallur District under the scheme. Tender
was invited and it was found that the petitioner failed to issue the work
order within time and there was a delay in the commencement of the
work. In view of the same, a show cause notice was issued on
04.02.2021 to the petitioner to initiate action under Rule 17(a) of the
Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 on the
ground that there was a delay in issuing the work order. The averment
made in the show cause notice is that the petitioner was specifically
directed to issue work order on 22.01.2021 whereas till 27.01.2021,
the tender was not even finalised.
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10. The petitioner gave a reply to the show cause notice on
15.02.2021. The petitioner took a very specific stand that the tender
was finalised on 21.01.2021 and the work order was also signed on
22.01.2021. However, some pressure was exerted from the side of the
Chairman of the panchayat union to give the contract in favour of his
supporter. The petitioner was attempting to resolve the dispute. The
petitioner had mentioned this in the reply. Apart from that, the
petitioner has also mentioned that the work order was signed on
22.01.2021 and it was also issued to the successful bidder.
11. The third respondent was not convinced with the reply given
by the petitioner and he has passed an order dated 25.07.2022
imposing the punishment of cancellation of increment for three months
without cumulative effect.
12. The petitioner aggrieved by the above order, filed an appeal
before the second respondent. The second respondent through
proceedings dated 26.11.2022 set aside the order passed by the third
respondent and remanded the matter back to the file of the third
respondent with a direction to conduct de novo proceedings.
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13. After the matter was remanded back to the file of the third
respondent,the present impugned proceedings dated 10.12.2022 was
issued. Curiously, the present impugned proceedings that was issued is
verbatim the same proceedings that was issued by the third
respondent earlier on 25.07.2022. It is clearly cut, copy, paste of the
earlier proceedings.
14. The main ground that was urged by the learned counsel for
the petitioner is that there was absolutely no negligence or misconduct
on the part of the petitioner warranting the imposition of punishment
against the petitioner. Learned counsel submitted that the punishment
itself came to be imposed only to stop the petitioner from getting his
name included in the panel for promotion to the post of Assistant
Director. The learned counsel further contended that even assuming
that there was some delay in issuing the work order, ultimately the
work was completed on time and it has become operational and
therefore, no loss was caused to the Government due to the alleged
delay in issuing the work order. The learned counsel in order to
substantiate his submission relied upon the judgment of the Hon'ble
Supreme Court in Union of India and Others Vs. J.Ahmed reported
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W.P.Nos.2313 of 2023 and 25420 of 2024
in (1979) 2 SCC 286.
15. Per contra, the learned Special Government Pleader
appearing on behalf of the respondents submitted that the petitioner
came up with a false explanation for the show cause notice issued by
the third respondent. The petitioner had taken a stand that he had
already issued the work order on 22.01.2021. However, it was found
that the work order was not given and the tender was not finalised till
27.01.2021. Hence, the stand taken by the petitioner is totally
unsustainable. It was further contended that the explanation submitted
by the petitioner was not satisfactory and therefore, only a minor
penalty was imposed against the petitioner which does not warrant
interference of this Court.
16. This Court has already taken into consideration the fact that
the present impugned proceedings dated 10.12.2022 is verbatim the
earlier proceedings issued on 25.07.2022. Not a single word has been
changed from the earlier proceedings and the present proceedings has
been issued in a mechanical fashion.
17. The second respondent while remanding the matter back to
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the file of the third respondent had set aside the earlier proceedings
and directed the third respondent to conduct de novo proceedings.
However, the third respondent, even without issuing notice to the
petitioner, after the orders were passed by the second respondent,
straight away proceeded to issue the impugned proceedings dated
10.12.2022. That only shows that the third respondent was more
interested in confirming his earlier proceedings and the third
respondent was not even inclined to issue notice to the petitioner and
ask for his explanation before issuing the latter proceedings after
remand.
18. The respondents have raised the ground of maintainability
since the petitioner has an alternative remedy of filing appeal before
the second respondent. The alternative remedy is only a self-imposed
restriction placed by the Court while exercising its jurisdiction under
Article 226 of The Constitution of India. In an appropriate case, in spite
of availability of alternative reedy, this Court can always exercise its
jurisdiction. This is more so in a case where there is violation of
principles of natural justice. The third respondent failed to take note of
the fact that the very same proceedings that was issued earlier on
25.07.2022 was set aside by the second respondent and the matter
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W.P.Nos.2313 of 2023 and 25420 of 2024
was remanded to the third respondent. The minimum that was
required on the part of the third respondent was to issue notice to the
petitioner and conduct de novo proceedings as directed by the second
respondent. The petitioner was not even aware about the order passed
in the appeal and the petitioner was straight away served with the
impugned proceedings dated 10.12.2022. The proceedings issued by
the third respondent is not only violative of principles of natural justice
but also suffers from total lack of application of mind. It also shows
that the third respondent was pre-determined in this case and wanted
to confirm his earlier proceedings.
19. The petitioner has taken a very specific stand that the tender
was finalised on 21.01.2021 and the work order was also signed on
22.01.2021. The typed set of papers filed on the side of the
respondents shows that the work order was in fact signed by the
petitioner on 22.01.2021. Unfortunately, there was some local issue
where the Chairman of the panchayat union was exerting pressure on
the petitioner to award the work in favour of his supporter. The
petitioner had to manage this situation and therefore there was some
lapse of time in ultimately starting the work. This small delay did not
ultimately result in any delay in the completion of the work or it did
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not cause any loss to the public exchequer. Therefore, this Court is not
able to find any negligence or misconduct on the part of the petitioner.
This specific stand that was taken by the petitioner was not even
considered by the third respondent.
20. In the light of the above discussion, this Court finds that the
impugned proceedings of the third respondent dated 10.12.2022 is an
error of law apparent on the face of the order which requires the
interference of this Court. Accordingly, the impugned proceedings of
the third respondent dated 10.12.2022 is hereby quashed.
21. The petitioner was promoted to the post of Assistant
Director of Rural Development during the pendency of the writ
petition. However, the complaint made by the petitioner is that he has
not been paid with the pay scale/pay band of the Assistant Director of
Rural Development and he is continued to be paid lesser salary. There
is no reason as to why the petitioner should be deprived of the pay
scale/pay band of the Assistant Director of Rural Development with
effect from 27.03.2023 when he assumed charge. Just because the
writ petition was pending, that does not mean that the petitioner can
be denied/deprived of the appropriate pay scale/pay band along with
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all attendant benefits.
22. In the result, both the writ petitions stand allowed and the
impugned proceedings of the third respondent dated 10.12.2022 is
hereby quashed. There shall be a further direction to the respondents
to fix the pay scale of the petitioner in the appropriate pay scale/pay
band of Assistant Director of Rural Development with effect from
27.03.2023. The arrears of pay shall be paid to the petitioner within a
period of eight weeks from the date of receipt of a copy of this order.
Effecting from November 2024 onwards, the petitioner shall be paid
the appropriate pay scale/pay band of the Assistant Director of Rural
Development. It goes without saying that the petitioner will be entitled
for the other attendant benefits to which he was entitled during this
interregnum period. The arrears of pay shall be calculated upto
October, 2024. No costs. Consequently, connected miscellaneous
petitions are closed.
20.09.2024
Index:Yes/No
Neutral Citation:Yes/No
mmi
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W.P.Nos.2313 of 2023 and 25420 of 2024
To
1.The Secretary to Government of Tamil Nadu,
Rural Development and Panchayat Raj,
Fort St. George, Chennai – 9.
2.The Commissioner of Rural Development,
Saidapet, Chennai – 15.
3.The Collector,
Kancheepuram District,
Kancheepuram.
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W.P.Nos.2313 of 2023 and 25420 of 2024
N.ANAND VENKATESH,J.
mmi
W.P.Nos.2313 of 2023 and 25420 of 2024
20.09.2024
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