Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
06. 06.2014 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P.(MD)Nos.2299 of 2010 And W.P.(MD)Nos.4039 and 4164 of 2010 and M.P.(MD)Nos.1/2010, 1&2/2011, 1to3/2010, 2to4/2010 Dr.V.Vijayakumaran : Petitioner in all W.Ps. Vs. 1.The Principal Secretary to Government, Public Works Department, Government of Tamil Nadu, Secretariat, Chennai-600 009. 2.The Secretary, Animal Husbandry, Dairying and Fisheries Department, Secretariat, Chennai-600 009. 3.The Commissioner for Animal Husbandry and Veterinary Services, DMS Campus, Chennai-600 006. 4.The Regional Joint Director of Animal Husbandry, Animal Husbandry Department, Dindigul. : Respondents 1to4 in W.P.(MD)Nos.2299,4039 & 4164/2010 5.The Secretary to Government, Personnel and Administrative Department, Secretariat, Chennai-600 009. : Respondent No.5 in W.P.(MD)No.4039 & 4164/2010 PRAYER in W.P.(MD)No.2299/2010: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari, to call for the records of the proceedings in AA(D)No.12 PW(E1)Department, dated 08.01.2010, of the first respondent and quash the order passed therein. PRAYER in W.P.(MD)No.4039/2010: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Mandamus, forbearing the respondents from reverting the petitioner from the post of Assistant Director of Animal Husbandry/Vet.Surgeon in respect of the disciplinary proceedings which was already initiated and culminated by way of proceedings in AA(D)No.12 PW(E1) Department, dated 08.01.2010, of the first respondent. PRAYER in W.P.(MD)No.4164/2010: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari, to call for the records of the proceedings in G.O.(2D)No.26, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 22.03.2010, of the second respondent and the consequential order in proceedings Na.Ka.No.9142/C3/2008, dated 26.03.2010 of the third respondent and quash the same. !For Petitioner : Mr.Yogesh Kannadasan ^For Respondents : Mrs.S.Bharathi, Government Advocate :COMMON ORDER
In W.P.(MD)No.2299 of 2010, the petitioner challenges the punishment of stoppage of increment for a period of one year without cumulative effect for the charges levelled against him.
2. In W.P.(MD)No.4039/2010, the prayer of the petitioner is to forbear the respondents from reverting him from the post of Assistant Director of Animal Husbandry/Veterinary Surgeon in respect of the disciplinary proceedings initiated already, vide order dated 08.01.2010.
3. In W.P.(MD)No.4164 of 2010, the petitioner challenges the orders reverting the petitioner from the post of Assistant Director of Animal Husbandry to the post of Veterinary Assistant Surgeon.
4. The case of the petitioner is that he has entered into the services of Animal Husbandry Department, Government of Tamil Nadu, as a Veterinary Assistant Surgeon, during 1983. While he was working as Veterinary Assistant Surgeon at Boothipuram Station and Thenkarai Station at Theni District, during the period 1996-2001, his service was required to a limited extent, with regard to 'Sothuparai Reservoir Project Rehabilitation Scheme'. The Public Works Department has evolved a Scheme to the displaced people in the course of construction of reservoir. The Assistant Engineer attached to the Public Works Department and one NGO, by name Masos Guild were entrusted with the task of procuring milch animals and providing them to such displaced persons for the purpose of income generation. The limited role entrusted to the petitioner is to inspect the animals regarding their health and valuation for the purpose of insuring the animals. Based on the certificates given by the petitioner, the Oriental Insurance Company insured the animals.
5. While the matters stood thus, the Government has directed the Vigilance and Anti-Corruption Department to investigate certain irregularities in the implementation of the said Scheme. After investigation, the Vigilance and Anti-Corruption Department has filed an F.I.R., in the year 2001, before the learned Judicial Magistrate, Madurai, wherein the Assistant Engineer, by name Mr.Chellam and the representative of NGO Mr.Gunasekaran were named as accused. The name of the petitioner was not mentioned in the First Information Report as accused. However, the Vigilance and Anti-Corruption Department directed the department concerned to initiate disciplinary proceedings against the concerned officers instead of pursuing the criminal prosecution. It appears that no charge sheet has also been filed in respect of the First Information Report registered against those two persons.
6. In pursuant to the same, the Tribunal for disciplinary proceedings initiated disciplinary proceedings not only against those persons but also against the petitioner. The charges framed against the petitioner is that he has issued false certificates in respect of the animals, which were not purchased by the beneficiaries, thereby, failed to maintain absolute integrity and devotion to duty.
7. For the charges levelled against the petitioner, an explanation was submitted by him stating that he was entrusted with the limited role of certifying the valuation and health condition of the animals, which were produced before him. The petitioner gave certificates only with reference to the animals, which were produced by the concerned Assistant Engineer as well as the representative of NGO and the beneficiary. At the time of issuing certificates, the petitioner has to conduct an inspection in the presence of the Development Officer of the concerned Insurance Company. During inspection, photographs were also taken and the same were maintained by the concerned Assistant Engineer as well as NGO. Further, in the First Information Report, the name of the petitioner was not mentioned as accused. However, without considering the explanation offered by the petitioner and without considering the fact that the petitioner's name has not been included in the First Information Report as an accused, the first respondent issued the impugned order dated 08.01.2010, imposing the punishment of stoppage of increment for a period of one year without cumulative effect. Hence, challenging the same, the petitioner has come forward with the Writ Petition being W.P.(MD)No.2299 of 2010.
8. When that being so, the second respondent, by G.O.(2D)No.26, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 22.03.2010, passed an order removing the name of the petitioner from the approved list fit for promotion to the post of Assistant Director of Animal Husbandry/Veterinary Surgeon on the ground that disciplinary proceedings were pending at the relevant point of time. Therefore, anticipating the proposed order of reversion, the petitioner has filed the second Writ Petition being W.P.(MD)No.4039 of 2010, seeking the relief of Mandamus, as stated above.
9. While so, the second respondent communicated the order dated 22.03.2010 to the third respondent, who in turn, passed an order of reversion, by proceedings dated 26.03.2010, which is the subject matter of W.P.(MD)No.4164 of 2010.
10. The first respondent filed a counter-affidavit denying the statements made by the petitioner as well as meeting out the grounds agitated. It is stated that based on the allegation of irregularities and malpractice against one Thiru.R.Chellam, formerly Assistant Executive Engineer, Public Works Department, in the purchase and distribution of relief grant and rehabilitation grant to the project affected persons of Sothuparai Reservoir Project in Theni District, the Government, in letter No.14848/E1/2001-1, Public Works, dated 14.05.2001, requested the appropriate inquiry authority to conduct a detailed inquiry. During the course of inquiry, the irregularities committed by Thiru.R.Madhavan, Assistant Executive Engineer, Public Works Department and Dr.V.Vijayakumaran, Veterinary Assistant Surgeon, the petitioner herein, had surfaced. The authority concerned alleged that the petitioner had issued false certificates in respect of the animals, which were not purchased by the beneficiaries and recommended that the petitioner may be placed on his defence before the Tribunal for Disciplinary Proceedings, Madurai. The other two officials viz., R.Chellam, Assistant Executive Engineer and R.Madhavan, Assistant Executive Engineer had also been placed on their defence before the Tribunal for Disciplinary Proceedings, Madurai, along with the petitioner, in Government letter No.14848/E1/2001-50, Public Works, dated 18.06.2007. The Commissioner for Disciplinary Proceedings held the charges against the petitioner as proved and after following the procedures under the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the punishment of stoppage of increment for one year without cumulative effect was imposed on the petitioner in G.O.(D)No.12, Public Works, dated 08.01.2010.
11. It is further stated that the irregularities committed by the petitioner came into force during the course of investigation. As regards the private persons, who represented the non-Governmental organisation viz., Mr.V.Gunasekaran, Project Officer and V.Thangavel, Director, M/s.Masos Guild, necessary orders were issued banning the business dealings with the individuals in G.O.(Ms)No.46, Public Works, dated 04.03.2009. Therefore, it is not correct to say that no action was taken against the private individuals.
12. It is also stated that since the officials belonging to Public Works Department and Animal Husbandry Department were involved in the irregularities, the Government in Public Works Department, under the provisions of Rule 9(A) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, decided to initiate common proceedings against all the three delinquent officers, since the highest ranking delinquent officer Thiru.R.Chellam, Assistant Executive Engineer belonged to Public Works Department. The case was entrusted to the Commissioner for Disciplinary Proceedings, Madurai, to frame charges against the officers including the petitioner and to remit the papers to the Government for passing final orders. It was established during inquiry that the petitioner had issued false certificates and the charges levelled against him held as proved. The first respondent, after careful and independent examination of the charges framed, written statement of the petitioner and findings of the Tribunal for Disciplinary Proceedings, Madurai, accepted the findings of the Tribunal holding the charges against the petitioner as proved. A copy of the final report of the Tribunal for Disciplinary Proceedings, Madurai was communicated to the petitioner for his further representation.
13. It is also averred in the counter-affidavit that under Rule 9(A) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the first respondent is empowered to initiate proceedings against the petitioner and hence, the allegations made on presumptions by the petitioner cannot be sustained.
14. It is also averred in the counter-affidavit saying that during inquiry, false certificates given by the petitioner regarding purchase of animals were placed and perused by the authority and on perusal of the same, the impugned order of punishment was imposed. Hence, the stand taken by the petitioner cannot be sustained.
15. The third respondent also filed a counter-affidavit on behalf of the second and fourth respondents, denying all the averments made in the affidavit filed in support of the Writ Petition and stated that as per the proceedings dated 18.06.2007, the case was referred to the Tribunal for Disciplinary Proceedings and the petitioner was found guilty and accordingly, the first respondent passed the impugned order. It is further stated that when the promotion panel was sent to the Government, no charges are pending, as per the records, against the petitioner, but before the date of promotion panel, charges have been framed against him by the Tribunal for Disciplinary Proceedings, Madurai. However, the said information was not received by the department while preparing the panel for promotion on 01.07.2007. On coming to know the said fact, the third respondent cancelled the promotion given to the petitioner. Thus, the third respondent prayed for dismissal of the Writ Petition.
16. The learned counsel for the petitioner submitted that principally the first respondent has no jurisdiction to initiate disciplinary proceedings against the petitioner, since the service of the petitioner is no way connected with the Public Works Department. He further submitted that without even obtaining a concurrence from the Animal Husbandry Department, the first respondent has proceeded with the disciplinary proceedings, which is illegal and hence, the punishment imposed by the first respondent, who has no jurisdiction over the same, is improper.
17. The learned counsel also submitted that no false certificates, as alleged, were given and the contradictory statements given by the parties concerned were also not considered by the authority concerned, while imposing the punishment. He further submitted that the valuation and examination of the livestock produced by the project affected persons to issue certificates for insurance purpose were actually made in the presence of the Development Officer of Oriental Insurance Company and the Insurance Company, as a Central Government Agency, cannot afford to make false insurance, like the one raised in this issue and, therefore, the particular charges levelled against him also will not hold good.
18. It is also pointed out by the learned counsel for the petitioner that the detailed explanation submitted by the petitioner was simply turned down and a non-speaking order has been passed by the first respondent, on which ground, necessarily, the impugned order dated 08.01.2010 is liable to be set aside.
19. The learned Government Advocate appearing for the respondents, reiterating the averments made in the counter-affidavits, prayed for dismissal of the Writ Petition.
20. I have considered the submissions made on either side and perused the materials available on record and perused the impugned orders also.
21. The main ground of attack relating to W.P.(MD)No.2299 of 2010 is that during 1996-2001, the service of the petitioner was required to a limited extent with regard to Sothuparai Reservoir Project Rehabilitation Scheme, by the Public Works Department. The role entrusted with the petitioner was to inspect the animals regarding their health and valuation for the purpose of insuring the animals. Accordingly, necessary certificates were also issued. In the meanwhile, the Vigilance and Anti-Corruption Department was directed by the Government to investigate certain irregularities in the implementation of the said Scheme. After investigation, the Vigilance and Anti-Corruption Department filed a First Information Report in the year 2001 before the Judicial Magistrate Court, Madurai, wherein the Assistant Engineer, by name Mr.Chellam and the representative of NGO Mr.Gunasekaran were named as accused. The name of the petitioner was not included as an accused in the First Information Report. Instead of pursuing the criminal prosecution, the Vigilance and Anti-Corruption Department directed the departments concerned to take appropriate disciplinary proceedings against the concerned officials, relating to the said issue. Therefore, the Commissioner for disciplinary proceedings immediately initiated departmental action against the petitioner and accordingly, a report was submitted to the authority concerned, holding the petitioner as responsible for the irregularities committed. A detailed explanation was submitted meeting out all the charges levelled against the petitioner and the same was submitted to the authority concerned for consideration. Being not satisfied with the same, the first respondent issued the order dated 08.01.2010, which is impugned herein.
22. A perusal of the impugned order dated 08.01.2010 would go to show that the authority concerned, viz., the Principal Secretary to Government, Public Works Department, Secretariat, Chennai, the first respondent herein, in the impugned order, deals with the entire subject in one single paragraph in paragraph No.4, which does not deal with the explanation given by the petitioner, relating to the charges levelled against him. The order impugned herein cannot be said to be a speaking order, since it does not deal with any of the objection raised by the petitioner. There is no specific finding given in the impugned order to that effect. It is nothing but non-application of mind and non-adopting proper procedure in dealing with the objection. Hence, the impugned order cannot be sustained and the same is liable to be set aside and accordingly, set aside and the matter is remitted back to the first respondent for passing appropriate orders, after giving an opportunity of being heard to the petitioner.
23. Since the impugned order dated 08.01.2010, imposing the punishment of stoppage of increment for a period of one year without cumulative effect, is set aside, the consequent orders dated 22.03.2010 and 26.03.2010, challenged in W.P.(MD)No.4164 of 2010, are also set aside, since those orders were issued, based on the order of punishment imposed on the petitioner, vide proceedings dated 08.01.2010.
24. In view of the order passed in W.P.(MD)No.4164 of 2010, the prayer sought for by the petitioner in W.P.(MD)No.4039 of 2010 has become infructuous.
25. It is needless to say that since the punishment imposed as well as the reversion orders are set aside, there is no impediment for the respondents to grant the petitioner all the benefits, which he is legally entitled to.
26. In the result, W.P.(MD)Nos.2299 of 2010 and 4164 of 2010 are allowed. W.P.(MD)No.4039 of 2010 is dismissed as infructuous. Consequently, the connected miscellaneous petitions are closed. No costs. To 1.The Principal Secretary to Government, Public Works Department, Government of Tamil Nadu, Secretariat, Chennai-600 009. 2.The Secretary, Animal Husbandry, Dairying and Fisheries Department, Secretariat, Chennai-600 009. 3.The Commissioner for Animal Husbandry and Veterinary Services, DMS Campus, Chennai-600 006. 4.The Regional Joint Director of Animal Husbandry, Animal Husbandry Department, Dindigul. 5.The Secretary to Government, Personnel and Administrative Department, Secretariat, Chennai-600 009.