Madras High Court
S.M. Khasim vs The Principal Secretary To Government on 15 September, 2014
Author: M. Sathyanarayanan
Bench: Sanjay Kishan Kaul, M.Sathyanarayanan
In the High Court of Judicature at Madras
Dated: 15.09.2014
Coram:
The Honourable Mr. SANJAY KISHAN KAUL, Chief Justice
and
The Honourable Mr. Justice M.SATHYANARAYANAN
Writ Petition No. 15865 of 2011
and M.P. Nos. 1, 2 and 3 of 2011
S.M. Khasim .. Petitioner
vs.
1. The Principal Secretary to Government
Housing and Urban Development Dept.
Fort St. George, Chennai 600 009.
2. The Managing Director
Tamil Nadu Housing Board
Nandanam, Chennai 35. .. Respondents
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PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for G.O.(D) No.131, Housing and Urban Development Department HBI(1) dated 24.7.2009 issued by the Principal Secretary to Government, Housing and Urban Development Department, the first respondent herein and the proceedings of the Managing Director, Tamil Nadu Housing Board, the second respondent herein made in proceedings No.DC2/3515/97 Board Secretariat, dated 23.7.2010, quash the same and direct the respondents herein to disburse all the retiral benefits due to the petitioner namely DCRG, commuted value of pension, leave benefits, additional charge allowance, all other service benefits available from the date of retirement namely 31.5.2000 within a short date that may be fixed by this Court.
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For Petitioner : Mr. K. Rajkumar
For Respondents : Mr. S.T.S. Moorthy
Govt. Pleader for R1
Mr. C. Kasirajan for R2
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O R D E R
(Made by M. SATHYANARAYANAN,J.) The prayer in the writ petition is to quash the order in G.O.(D)No.131, Housing and Urban Development Department, dated 24.07.2009, passed by the first respondent as well as the order of the second respondent, dated 23.07.2010, directing to cut a sum of Rs.5,000/- per month for a period of five years from the pension of the petitioner, and to direct the respondents to settle the terminal benefits forthwith.
2. According to the petitioner, he entered the services of the Tamil Nadu Housing Board as Junior Engineer in the year 1962 and in course of time, he got promotions and in the year 1999, he was promoted to the post of Chief Engineer. On 19.02.1997, a charge memo came to be issued against the petitioner herein for the following delinquencies:
Charge No.1 that the said Thiru.S.M.Khasim, Superintending Engineer, while functioning as Executive Engineer, J.J. Nagar Division during the period has given allotment of Plot No.PC5/(Commercial Plot) on 10.10.1988 to a firm namely M/s. Al Fathah and Company in which the following relatives of Thiru.S.M.Khasim are partners:-
a) Ashraf Fathima W/o Thiru S.M.Khasim
b) Ghayas Fathima D/o Thiru S.M.Khasim
c) S.M. Siddique S/o Thiru S.M. Khasim The sale deed was issued on 30.7.1996.
Charge No.2 that during the aforesaid period and while functioning in the aforesaid office, the said Thiru.S.M. Khasim, Executive Engineer has allotted one Commercial Plot No.2/PC6(PC89) measuring an extent of 5100 sq.ft. to his daughter Mrs. Ghayas Fathima.
Charge No.3 that during the aforesaid period and while functioning in the aforesaid office, the said Thiru.S.M. Khasim, Executive Engineer has allotted one Industrial Plot No.B24, Mogappair Industrial Estate (West), measuring 2 grounds and 2298 sq.ft. on 28.10.1987 for a value of Rs.3,21,356/- to M/s. Al Fathah & Co.
Charge No.4 that during the aforesaid period and while functioning in the aforesaid office, the said Thiru.Khasim was allotted a plot bearing No.R7/2 at Anna Nagar Western Extension on 8.2.1988 without the permission of the competent authority. Thus, he has violated Section 7(1) of Tamil Nadu Housing Board Officers and Servants Conduct Regulation, 1963 and Tamil Nadu Housing Board Service Regulation 32(A) of 1969.
Charge No.5 that during the aforesaid period and while functioning in the aforesaid office the said Thiru.S.M. Khasim has also purchased a plot bearing No.R7/3 at Anna Nagar Western Extension in the name of his daughter Tmt. Ghayas Fathima on 8.2.1988 without the permission of the competent authority.
Charge No.6 that during the aforesaid period and while functioning in the aforesaid office Thiru.S.M.Khasim, Executive Engineer has not informed about the acquisition of the above said properties to the Board in contravention to the instructions contained under Section 7(5) of Tamil Nadu Housing Board Officers and Servants Conduct Regulation, 1963.
3. The petitioner had submitted his detailed explanation to the charge memo stating that though the plots in question have been allotted in favour of a firm, namely, M/s. Al Fathah and Company, in which, his close relatives are partners, the fact remains that he was not part of the Select Committee and the Select Committee after satisfying with the compliance of the norms and price quoted by the applicants, had allotted the plots in question and that there was no financial loss to the Tamil Nadu Housing Board also. The second respondent being not satisfied with the explanation submitted by the petitioner, appointed an Enquiry Officer, who had submitted his report, holding that the six charges framed against the petitioner herein vide charge memo dated 19.02.1997, have been proved vide enquiry report dated 27.04.2006.
4. The petitioner was furnished with a copy of the enquiry report and called upon to submit his further explanation and he had also offered his further explanation. Thereafter, the petitioner filed Writ Petition No.20654 of 2007 praying to quash the Charge Memo dated 19.02.1997 and forbear the respondents from in any manner proceeding with the enquiry with a further direction to disburse/settle all his terminal benefits. The second respondent herein had filed a counter-affidavit, for which, rejoinder and further reply had also been filed. Learned single Judge of this Court, vide final order dated 27.08.2008, has allowed the writ petition on the ground of belated initiation of disciplinary proceedings.
5. The official respondents in the said writ petition aggrieved by the said order filed Writ Appeal No.203 of 2009 and the same was also disposed of today by a separate order. In the said writ appeal, interim order was granted on 25.03.2009, wherein this Court has recorded the statement made by the learned Standing Counsel appearing for the Housing Board that the final decision will be taken on the enquiry conducted against the petitioner herein and the decision taken in this regard will not be communicated, but the same shall be tendered to the Court on the next date in a sealed cover. Subsequently, the Board of Directors made a recommendation to the Government and based on that, the Housing and Urban Development Department, the first respondent herein, has passed an order in G.O.(D) No.131, dated 24.07.2009, confirming the provisional conclusion arrived by the Tamil Nadu Housing Board and ordered to cut a sum of Rs.5,000/- per month for a period of five years from the pension of the petitioner under Rule 9(1)(a) of Tamil Nadu Pension Rules, 1978, read with Regulation 7 of Tamil Nadu Housing Board Pension Regulation, 1977. The decision taken in that regard was placed before this Court in Writ Appeal No.203 of 2009 and this Court, vide interim order dated 25.02.2010, granted liberty to the respondents herein / appellants in the said writ appeal to issue final order and granted liberty to the petitioner herein to challenge the said order. Thereafter, the second respondent, by proceedings dated 23.07.2010, has communicated the decision taken by the first respondent/Government for effecting cut in pension and challenging the legality of the same, the present writ petition is filed.
6. Mr.K.Rajkumar, learned counsel appearing for the petitioner has vehemently contended that in the interregnum, the petitioner was promoted to the post of Chief Engineer and he had also retired from service and on account of the impugned order, he will be left with nothing though he has rendered very many years of hard and sincere service. His further submission is that the petitioner is now 72 years of age and is suffering from age related illness, that the disciplinary proceedings came to be initiated after a lapse of many years and that even though his close relatives have got allotment of plots, the petitioner has nothing to do with the said allotment, for the reason that the process of selection was done by an independent committee, in which the petitioner has no role to play. Further, it is not even the case of the respondents that on account of the said transaction, the respondents have been put in financial loss.
7. Alternatively, it is the submission of the learned counsel for the petitioner that in the event of this Court coming to the conclusion that the charges framed against the petitioner have been proved beyond all probabilities, then a lesser penalty/punishment may be imposed by taking into consideration of the fact that the order of allotment came to be issued in the year 1988 and the charge memo came to be issued in the year 1997 and the petitioner has also been promoted as Chief Engineer without prejudice to the disciplinary proceedings. Further, taking into consideration his age and illness, the said plea may be sympathetically considered.
8. This Court heard Mr.S.T.S.Moorthy, learned Government Pleader appearing for the first respondent and Mr.C.Kasirajan, learned Standing Counsel appearing for the second respondent, who would vehemently contend that the petitioner did not disclose that his close relatives are submitting bids and though the selection was made by an independent Committee, the fact remains that the petitioner had prepared a comparative chart and in all fairness he could have disclosed the fact that his close relatives had participated in the auction. He further submits that since the Enquiry Officer has found that all six charges are proved and taking into consideration of the fact that the petitioner had retired from service, leniency was shown by effecting cut in pension and hence, quantum of punishment need not be interfered with.
9. After arguing for some time, the learned counsel for the petitioner confines the relief on the plea of dis-proportionality of sentence stating that the matter in issue had not caused any financial loss, as the allotment obtained by the Company belonging to his daughter and his wife was at a price much above the upset price. It is, thus, submitted that the issue at best is an element of propriety, as the petitioner ought to have kept away from the process.
10. This Court has carefully considered the rival submissions and also perused the materials available in the typed-set of documents.
11. No doubt, the close relatives of the petitioner, namely, his wife and daughter had participated in the bid and the petitioner had prepared the comparative chart, but the fact remains that the Minutes of the Sites and Services Committee consisting of Vice Chancellor, Member Secretary, Financial Adviser, Chief Urban Planner, Deputy Planner, Deputy Financial Analyst and Assistant Planner, the Officials of the Tamil Nadu Housing Board and Slum Clearance Board, Corporation of Chennai and SIDCO had taken into consideration the bid/offer of the relatives of the petitioner and allotted the plots. As rightly contended by the petitioner that it is not even the case of the second respondent/TNHB that on account of delinquencies on the part of the petitioner, the Tamil Nadu Housing Board has incurred any financial loss. At the same, it has to be pointed out at this juncture that in all fairness, the petitioner could have disclosed the fact that his close relatives had made bids, but he failed to do so.
12. This Court has also gone through the enquiry report as well as the decision taken by the Board of Directors of Tamil Nadu Housing Board and is of the view that both authorities had analysed the materials and found that the charges framed against the petitioner have been proved. It is well settled position of law that this Court in exercise of jurisdiction under Article 226 of the Constitution of India, cannot act as an appellate authority to re-appreciate/re-consider the evidence/materials placed before the disciplinary authority as to the findings unless it is shown that the said findings are based on no evidence or suffer on account of perversity.
13. The only question remains as to the quantum of punishment to be imposed against the petitioner. The Hon'ble Supreme Court in the decision reported in (2003) 8 SCC 9 (Dev Singh v. Punjab Tourism Development Corporation Limited has held as follows:
11. ... a court sitting in an appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty. However, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court then the Court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the above noted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.
14. The Hon'ble Supreme Court in the decisions reported in (1995) 6 SCC 749 (Chaturvedi v. Union of India); (2005) 7 SCC 338 (V. Ramana v. A.P.SRTC); and (2008) 7 SCC 580 (State of Meghalaya v. Mecken Singh N. Marak) has laid down the proposition that in the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases.... The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the Court, cannot be subjected to judicial review and only in very rare cases, the Court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority.
15. The facts of the present case would disclose that subsequent to the initiation of disciplinary proceedings, the petitioner was given promotion and he retired as Chief Engineer on 31.05.2000 without prejudice to the pendency of the disciplinary proceedings. As already pointed out in earlier paragraphs that with regard to the alleged delinquencies that took place in the year 1988, the petitioner was issued with a charge memo in the year 1997. It is also to be noted at this juncture that the petitioner made a challenge to the order dated 11.7.1997 as well as the charge memo dated 19.2.1997 by filing Writ Petition Nos. 6068 and 6069 of 1998 and the said writ petitions were disposed of by a common order dated 21.08.1998, with a direction to the Tamil Nadu Housing Board to conclude the disciplinary proceedings within six months from the date of the order and with liberty to consider the claim of the petitioner for promotion notwithstanding the pendency of the disciplinary proceedings against him. It is admitted by the learned Standing Counsel for the Housing Board that the disciplinary proceedings was not concluded within the time stipulated by this Court and no extension of time was also sought for and ultimately the disciplinary proceedings were concluded and the punishment of cut in pension came to be imposed on 23.07.2010.
16. Considering the age of the petitioner and the fact that there is no financial loss on account of the proved delinquencies on the part of the writ petitioner, this Court is of the view that the punishment of cut in pension at the rate of Rs.5,000/- per month for a period of five years is shocking the conscience of the Court and also highly disproportionate to the proved charges. The petitioner, in pursuance of the orders passed in Writ Petition Nos. 6068 and 6069 of 1998, got promotion and retired as Chief Engineer on 31.05.2000 and considering the fact that he is now aged about 72 years and suffering due to various ailments, it is not prudent to remit the matter once again to the disciplinary authority for reconsideration of the matter in order to impose a lesser punishment.
17. In view of the aforesaid, we consider it appropriate to substitute the punishment of reduction of a sum of Rs.5,000/- per month for five years with stoppage of two increments without cumulative effect for a period of two years.
18. In the result, the writ petition is partly allowed and the impugned orders dated 24.07.2009 and 23.07.2010 are set aside insofar as the quantum of punishment is concerned. The petitioner is imposed with a punishment of postponement of two increments without cumulative effect for a period of two years.
19. In view of the modification of the punishment, the respondents are directed to pass appropriate orders for giving effect to the above said punishment and settle the terminal benefits and other consequential benefits to the petitioner within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P. Nos.1, 2 and 3 of 2011 are closed.
[S.K.K., CJ] [M.S.N., J.]
ATR 15th September, 2014.
To
1. The Principal Secretary to Government
Housing and Urban Development Dept.
Fort St. George, Chennai 600 009.
2. The Managing Director
Tamil Nadu Housing Board
Nandanam, Chennai 35.
THE HON'BLE THE CHIEF JUSTICE
and
M. SATHYANARAYANAN,J.
ATR
W.P. No. 15865 of 2011
15.09.2014