Sundar V. Secretary To Government, Public Works Department, Chennai

[MADRAS HIGH COURT]

P. Sreenivas Sundar
v
(1) Secretary To Government, Public Works Department, Chennai; (2) Chief Engineer - General, Public Works Department, Chepauk, Chennai

N. PAUL VASANTHAKUMAR

18 Jun 2008
BENCH
N. PAUL VASANTHAKUMAR

CASES REFERRED TO
T.N.State Transport Corporation v. P.Karuppusamy [2008 (1) LLJ 460]

RULES REFERRED
Tamil Nadu Civil Services (Discipline and Appeal) Rules [r. 17(b)]
TNGSC Rules, 1973 [r. 30, r. 20(3)(i)]
CASE NO
W.P.No.26973 of 2007 & 11084 of 2006, W.P.M.P.No.2441 of 2007 & M.P.No.3 of 2007

LAWYERS
F.X.A.F.Denny, V. Manoharan
.JUDGMENT TEXT
The Order of the Court was as follows :

1. By consent of both sides, the writ petitions are taken up for final disposal.

2. W.P.No.26973 of 2007 is filed challenging the order of punishment imposed on the petitioner viz., stoppage of increment for one year without cumulative effect, confirmed in review with consequential relief of promoting the petitioner in the post of the Chief Engineer in appropriate place with monetary benefits.

3. W.P.No.11084 of 2006 is filed to quash the order dated 13.3.2006 and direct the first respondent to promote the petitioner as Executive Engineer with effect from 1998-1999 and grant subsequent promotion as Superintending Engineer with all attendant benefits.

4. The case of the petitioner in both the cases are as follows:

(a) Petitioner is a post graduate degree-holder in Engineering, joined in the Public Works Department as Assistant Engineer on 4.10.1972 and he having passed TNPSC examinations in the year 1974, his services were regularised from 4.10.1972. He was promoted as Assistant Executive Engineer in November, 1984.

(b) When the petitioner was working as Assistant Executive Engineer (Buildings), Sub-Division II, Nagercoil, in the year 1993, the Government decided to install Steam Laundary Equipments in 16 Government Hospitals at a cost of Rs.50 lakhs for each hospital, covering five special building circles of Public Works Department viz., Salem, Erode, Madurai, Trichy and Madras. The Chief Engineer (Buildings) sanctioned the estimated amount of Rs.55 lakhs for the above works. A lumpsum provision of Rs.37 lakhs was earmarked for the procurement of Steam Laundary Equipments, which will be sanctioned on the basis of the tentative estimate prepared and submitted by the General Superintendent, Public Workshops and Stores, Chennai. The mechanical portion of the work was entrusted to the respective Superintending Engineers of Special building. In March, 1993, the Government also released a special letter of credit to the value of Rs.35 lakhs for each hospital for meeting the expenditure towards the installation of the Steam Laundary Equipments.

(c) The petitioner is serving under the Superintending Engineer, Madurai. The Superintending Engineer, Madurai, has chosen to split the machinery portion of the work into four parts costing less than Rs.10 lakhs each and called for quotations from the Co-Operative Societies, which are registered with the Tamil Nadu Khadi and Village Board, Chennai. The Superintending Engineer gave supply orders to four Co-Operative Societies at a total cost of Rs.38, 50, 000/- for each hospital. He also agreed and accepted the condition of the four Co-operative Societies that they should be paid 90% of the cost as advance payment. Accordingly a sum of Rs.34, 65, 000/- was paid as 90% advance for each hospital.

(d) The four societies, which received 90% of the total cost as advance payment, started supplying machineries to the hospitals. The Government hospital at Virudunagar was supplied with machineries and erection was also completed and at that point of time, the State Vigilance Department intervened on presumption that there had been some irregularity. Therefore the Government ordered prosecution of the Superintending Engineer as he was solely responsible for placing supply orders on quotation basis. Prosecution was also initiated against 12 members of the Co-Operative Societies.

(e) The Government further initiated disciplinary proceeding under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, against the Executive Engineers and Assistant Executive Engineers for issuing cheques towards 95% of fittings. As against the petitioner, five charges were framed for issuing cheques in favour of the four Co-operative Societies, alleging that advance payment of Rs.69, 30, 000/- was made in favour of Palani Co-Operative Society, Karamadai Co-Operative Society, Thathampalayam Co-Operative Society and Adyar Co-Operative Society, without verification of the genuineness of the said Societies, for the supply of Steam Laundary Equipments for Government T.B.Hospital, Asaripallam, and General Hospital at Nagarcoil, which are in violation of the Government orders; that the petitioner counter signed the measurements recorded by the Assistant Engineer in M.Books without verification and made payments; that the petitioner failed to safeguard the Government funds resulting in loss to the Government; that the advance payments were made with corrupt motive and for personal gain in collusion with his superior officers and thereby petitioner failed to maintain absolute integrity and devotion to duty.

(f) A charge memo was issued on 13.12.1996. On 18.2.1999, Enquiry Officer was appointed. In the meantime, due to the pendency of the charges, petitioner's promotion was denied even though his juniors were given promotion. Petitioner denied the charges. The Enquiry Officer found that charges 1 and 2 have been proved partially and charges 3 to 5 have not been proved. The Government disagreed with the findings of the Enquiry Officer with regard to charges 1, 2, 3 and 5 and called for further explanation. Petitioner submitted further representation on 17.7.2005, but no final order was passed. On 5.4.2002, the Government imposed the punishment of stoppage of increment for one year without cumulative effect, by stating that charges 1, 2, 3 and 5 have been proved.

(g) As against the said order of punishment, petitioner filed review on 12.2.2002, which was also dismissed on 12.10.2004. According to the petitioner, due to the pendency of the charges as well as punishment, petitioner was denied of promotions in six promotion panels. The denial of promotion is challenged in W.P.No.11084 of 2006.

(h) Petitioner originally challenged the order of punishment in O.A.No.4873 of 2002 without challenging the order passed in the appeal. The said case was renumbered as W.P.No.23069 of 2006 for inclusion of his name in the approved list of persons fit for promotion to the post of Superintending Engineer. The said two writ petitions having been dismissed, petitioner filed W.A.No.553 and 554 of 2007 before this Court. A Division Bench of this Court by order dated 27.6.2007, while disposing of the writ appeal, granted liberty to the petitioner to file fresh writ petition challenging the order of punishment and the review Order, and for consequential benefits. After filing the said writ petition, petitioner was given liberty to pray for hearing of W.P.No.11084 of 2006 together and also claimed promotional benefits to the next higher post of Superintending Engineer to Chief Engineer from the date of his juniors were given promotion.

(i) On the basis of the above Division Bench order, these writ petitions are clubbed together and disposed of by this common order.

5. The learned counsel for the petitioner submitted that for the very same set of allegations, the Secretary to Government, Public Works Department, based on the vigilance report, gave a complaint against the Superintending Engineer, Public Works Department, Madurai, on 26.10.1993 and a criminal case was registered in crime No.2 of 1993 before the Inspector of Police, Vigilance and Anti Corruption, Madurai, and after investigation charge sheet is filed in C.C.No.1 of 1996 before the Sub Judge (First Additional Sessions Judge-cum-Chief Judicial Magistrate) Madurai, against the said Superintending Engineer and others, wherein the petitioner is cited as a witness. As per the charge sheet filed in the said criminal case, there is no accusation against the petitioner and whole allegation is made only against the Superintending Engineer and to substantiate the charge framed against the Superintending Engineer, petitioner is cited as witness. In contravention of the said stand taken before the Criminal Court, the respondents have issued a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, accusing the petitioner for violation of the Government Orders, payment of advance to four Co-Operative Societies, etc. The learned counsel therefore submitted that criminal complaint having been given against the Superintending Engineer alone by the Secretary to Government, as early as on 26.10.1993 and charge sheet having been filed on 4.7.1996, the charge memo issued against the petitioner on 17.12.1996 for the very same incident is unsustainable and the petitioner, who is supporting the prosecution case in the criminal case, is proceeded departmentally, as if he is also involved in the said incident. According to the learned counsel for the petitioner, the said inconsistent stand cannot be sustained.

6. The learned counsel for the petitioner further submitted that based on the said charge memo, even though petitioner denied the allegation, enquiry was conducted and the enquiry officer found that charge No.1 is not proved as the Government order, which is said to have been violated is not communicated and the advance payment was made only as per the instructions of the Superintending Engineer. Part of charge No.2 alone is proved i.e., the petitioner as Assistant Executive Engineer should have satisfied himself before countersigning the entries in the M.Book. However, it is the finding of the enquiry officer that the petitioner is not responsible for misappropriation of the Government fund as there is no evidence to substantiate the charge. Charge Nos.3, 4 and 5 are also held not proved. The learned counsel further submitted that the disciplinary authority differed with the findings of the enquiry officer and held that charge Nos.1, 3, 4 and 5 are proved. The learned counsel submitted that before differing with the findings of the enquiry officer, the petitioner was not given notice seeking as to why the findings of the enquiry officer cannot be deviated and held the charges as proved and ultimately the Government imposed the punishment of withholding of increment for a period of one year without cumulative effect against the petitioner. The review filed by the petitioner against the said punishment was also dismissed on 12.10.2004 without considering the vital aspect as to whether the respondents are right in proceeding against the petitioner for the allegations, which were made against the Superintending Engineer, in which the petitioner was shown as a witness.

7. The learned Government Advocate on the other hand submitted that even though the petitioner is not implicated as an accused in the criminal case and cited as a witness, the department is well in its right to initiate disciplinary proceeding against the petitioner and there is no bar to proceed against the petitioner.

8. I have considered the rival submissions made by the learned counsel for the petitioner as well as learned Government Pleader.

9. The point in issue is whether the respondents are justified in initiating the disciplinary proceeding against the petitioner and imposing punishment of withholding of increment for one year without cumulative effect.

10. The facts of the case as could be seen from the pleadings is that the petitioner was working as an Assistant Executive Engineer, Public Works Department, Nagercoil Division.

11. The petitioner, admittedly worked under the supervision of the Superintendent Engineer, Public Works Department, Madurai. The charges framed against the petitioner reads as follows: Charge No.1:

That Thiru P.Sreenivasasundar, in his capacity as Assistant Executive Engineer of the Buildings Sub-Division-II, Nagercoil has made 90% advance payment of Rs.69, 30, 000/- and made payment for the said amount in favour of the four Co-Operative Societies viz., Palani Co-Operative Society; Karamadai Co-Operative Society; Thathampalayam Co-Operative Society; and Adyar Co-Operative Society, without verification of the genuineness of the said Societies, for the supply of Steam Laundary Equipments for Government T.B.Hospital, Asaripallam, and General Hospital at Nagarcoil, an act which was in gross violation of G.O.Ms.No.853, Industries (SID.II) Department, dated 16.8.1990 and G.O.Ms.No.539, Industries, (SID), Department, dated 13.10. 1991 Ch 2:

That Thiru P.Sreenivasasundar, Assistant Executive Engineer, PWD, had countersigned the measurements recorded by the Assistant Engineer in the M.Books No.551A, 3828 & 3933 for 90% advance payment of Rs.69, 30, 000/- without verification and issued payment on 29.1.1993 and 30.3.1993 in favour of the said four Co-Operative Societies for the supply of Steam Laundary Equipments for G.H. at Nagercoil and thus responsible for misappropriation of Government Money. Charge No.3:

That Thiru P.Sreenivasasundar, Assistant Executive Engineer, PWD in gross violation of Art.3(1)(b) and 4 of the TNPC Vol.I, had failed to safeguard the Governments funds ultimately resulting in loss to the Government. Charge No.4:

That Thiru P.Sreenivasasundar, Assistant Executive Engineer, PWD, had failed to ensure the facility and capacity of the said societies to manufacture the required sophisticated instruments for Steam Laundary but towards the bill and advance payment with corrupt motive and for personal gain collusion with his superior officers. Charge No.5:

That by committing the aforesaid irregularities he had failed to maintain absolute integrity and devotion to duty as contemplated under Rule 30 of TNGSC Rules, 1973.

From the perusal of the above charges it is evident that the crux of the allegations is that the petitioner issued cheques in favour of four co-operative Societies for the payment of Rs.69, 30, 000/- without verification of the genuineness of the said Societies for the supply of Steam Laundary Equipments and the payments were made by corrupt motive and for personal gain in collusion with his superior officers. It is not in dispute that for the very same incident viz., issuing cheques towards advance payments to four co-operative societies, the first respondent preferred a complaint against the Superintending Engineer, Public Works Department, Madurai, on 26.10.1993 i.e, more than three years prior to the issuance of the charge memo to the petitioner and based on the said complaint preferred by the first respondent, a criminal case was registered in crime No.2 of 1993 on the file of the Inspector of Police, Vigilance and Anti-Corruption Wing, Madurai. After thorough investigation, charge sheet is also filed on 4.7.1996 in the above criminal case and it is pending as C.C.No.1 of 1996 on the file of the Sub Judge (First Additional Sessions Judge-cum-Chief Judicial Magistrate), Madurai. In the said charge sheet filed before the criminal court, for the very same allegations, the Superintending Engineer, Madurai is made as an accused and the petitioner is cited as witness No.24. From the perusal of the above charge sheet, it is clear that there is no accusation against the petitioner. Thus it is clear that in respect of the very same allegation now made against the petitioner, the respondents have taken specific stand before the criminal Court that the Superintending Engineer is responsible for the said allegations.

12. As stated supra, the Charge sheet having been filed before the criminal court on 4.7.1996, the respondents are not justified in issuing the charge memo dated 13.12.1996 to the petitioner by taking contrary stand. Petitioner having been cited as a witness to support the case of the prosecution, which is filed against the Superintending Engineer, Madurai, petitioner cannot be proceeded for the very same set of allegations under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, as it amounts to taking inconsistent stand before different forum, more particularly, taking one stand before the judicial forum and taking a different stand before the departmental authorities # .

13. The point as to whether it is permissible to take inconsistent stand before different forums was considered by a Division Bench of this Court in the decision reported in 2008 (1) LLJ 460 (T.N.State Transport Corporation v. P.Karuppusamy). In paragraph 24, the Division Bench held as follows:

"24. ....... The appellant Corporation, having taken a plea that the driver of the bus was not responsible for the accident, could not turn around to say that he was responsible for the accident. As such, it is very much bound by the pleadings raised by it before the Tribunals and this Court. The law is well settled as to the aspect that the standard of proof in both the proceedings before the criminal Court and the domestic enquiry officer are entirely different. However, since the Corporation has consciously raised the contention in favour of the bus driver before the judicial fora, it is precluded from proceeding against him in departmental proceedings. ........" (Emphasis supplied) *

14. The learned counsel for the petitioner also submitted that as per Rule 20(3)(i) of the Tamil Nadu Government Servants Conduct Rules, 1973, petitioner cannot take an independent decision when he is acting under the directions of his superior officer. The said submission is also well founded because it is the consistent case of the petitioner that he has acted in accordance with the directions of the Superintending Engineer. If really the petitioner was also arrayed as an accused in the criminal case, even during the pendency of the criminal case or if he was acquitted on benefit of doubt or on technical reasons, the respondents may be justified in proceeding against him departmentally. The respondents having not chosen to accuse the petitioner before the Criminal Court, viz., Judicial Forum, they are not entitled to frame the charge memo against the petitioner for the very same allegations.

15. It is also to be noted that even on merits the enquiry officer found that the charges levelled against the petitioner are not proved except part of charge No.2. A clear finding is given to the effect that the petitioner is not responsible for misappropriation of the Government funds as there is no evidence to substantiate the charge. The Disciplinary Authority however differed with the findings of the Enquiry Officer in respect of charges 1, 3 and 5. The Disciplinary Authority stated that the petitioner should have verified the correctness of the entries made in the M.Books while countersigning the entries and ensured that the recipient Societies were in a position to undertake such huge orders and complete it as per the specifications. It is also stated by the Disciplinary Authority that Government Orders issued during 1990 and 1992 were not communicated. However, it is further stated that before making the payment the petitioner should have verified the legal position with the higher officials as he was aware of the Government Orders. The said stand taken by the Disciplinary Authority is also without any basis as it is admitted in the order that the relevant Government Orders were not communicated. Therefore the awareness of the Government Orders by the petitioner is based on pure assumption which is a perverse finding. Based on the above differing views of the Enquiry Officer the impugned punishment was imposed. As stated earlier, the petitioner acted as per the directions of the Superintending Engineer and he has no power to verify the genuineness of the Societies, for whom the higher authority has directed to make cheque payments # .

16. In the light of the above finding of the Enquiry Officer as well as the findings given by me, I hold that the charge memo issued against the petitioner is not maintainable and the consequential punishment of withholding increment for one year without cumulative effect, imposed on the petitioner by the Disciplinary Authority as confirmed in review, is liable to be set aside.

17. In W.P.No.11084 of 2006, petitioner has prayed to quash the order dated 13.3.2006 passed by the first respondent declining to restore his original seniority in the category of Executive Engineer and for subsequent inclusion in the panel of Executive Engineers fit for promotion as Superintending Engineer for 2005-2006. The said order was passed by the first respondent on the basis of pendency of 17(b) charges against the petitioner as well as the order of punishment imposed on the petitioner. The said charges having been found unsustainable and the punishment order having been set aside, petitioner is entitled to succeed and therefore the impugned order in the above writ petition is also set aside. The first respondent is directed to promote the petitioner as Executive Engineer with effect from 1998-1999 notionally without monetary benefit and subsequently promote him as Superintending Engineer from the date of promotion given to his juniors as Superintending Engineer and also give subsequent promotion as Chief Engineer, if he is found eligible. Since there is delay on the part of the petitioner in challenging the order of punishment, petitioner is not entitled to get monetary benefits. Petitioner is due to retire from his service on 31.10.2008. Taking note of the said fact, the first respondent is directed to pass orders as directed above, within a period of four weeks from the date of receipt of copy of this order.

The writ petitions are allowed with the above directions. No costs. Connected miscellaneous petitions are closed.