Madras High Court
S.A.Xavier vs The Principal Secretary To Government on 7 August, 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.08.2012
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.P.(MD)No.13844 of 2009
and
M.P.(MD) Nos.1 and 2 of 2009 and 1 of 2011
S.A.Xavier ... Petitioner
Vs.
1.The Principal Secretary to Government,
Public Works (E2) Department,
Secretariat,
Fort St. George,
Chennai - 600 009.
2.The Engineer-in-Chief, WRO
and Chief Engineer (General),
Public Works Department,
Chepauk, Chennai - 5. ... Respondents
Prayer
This Writ Petition is preferred under Article 226 of the Constitution
of India to issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned order of the 2nd Respondent initiated by way of
Charge Memo in No.C11(1)/11389/08-3, dated 14.03.2009 and to quash the same
and consequently to direct the Respondents to consider the promotion of
petitioner to the Post of Executive Engineer in the panel for the year 2009-
2010 with all monetary and attendant benefits on the date of promotion of his
juniors.
!For Petitioner : Mr.Veera Kathiravan
^For Respondents : Mr.Aayiram K.Selvakumar
Government Advocate
:ORDER
The petitioner was initially appointed as Assistant Engineer in the Public Works Department in the year 1983. In the year 2000, he was promoted as Assistant Executive Engineer (Civil) in the same department. In the year 2003, he was sent on deputation to the Rural Development Department as Assistant Executive Engineer. On 09.12.2006, he was posted as Assistant Executive Engineer, Rural Development Sub Division, Pudukkottai. While so, the Director of Rural Development and Panchayat Raj, by his proceedings in Roc.No.42878/2006/EE1 dated 28.12.2006, reverted him back to the parent Department viz. Public Works Department. Aggrieved over the same, the petitioner filed a Writ Petition in W.P.No.1275 of 2007, in which, by order dated 06.03.2007, this Court stayed the said reversion. Despite the order of stay, yet another order was passed by the Director of Rural Development and Panchayat Raj on 06.08.2007 deputing him to Tsunami Directorate to implement the Tsunami Scheme funded by the Asian Development Bank. Challenging that, the petitioner filed another Writ Petition in W.P.(MD)No.9240 of 2007 before this Court. By order dated 19.11.2007, this Bench stayed the said order as well. Despite the said order dated 19.11.2007, the petitioner was not given any posting order in the Rural Development Department. Then, after some time, he was given posting order and accordingly, he joined on 18.02.2008 in the Rural Development Department.
2. While so, he was served with a Charge Memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, on 22.08.2008. Subsequently, the said charges were dropped by the Government in G.O.(D)No.122 P.W.(E2), dated 21.04.2009. Once again, the petitioner was suspended from service by the Director of Rural Development and Panchayat Raj under G.O.(D).No.632 RD(E3) Department, dated 22.08.2008, with effect from 22.08.2008. That order was again challenged by the petitioner by filing yet another Writ Petition in W.P.No.21771 of 2008. By Order dated 05.09.2008, the order of suspension was stayed by this Court. On 29.10.2008, this Court was reported that the order of suspension has been suo motu revoked. Accordingly, the Writ Petition was closed. Again, yet another Charge Memo was issued on 14.03.2009 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The said Charge Memo is under challenge in this Writ Petition.
3. I have heard the learned counsel for the petitioner and the learned Government Advocate for the respondents and also perused the records carefully.
4. The Charge Memo contains as many as 11 charges. These charges are based on the report submitted by K.Rajamani, Additional Director of Rural Development, who inspected the AGAMT (midj;J fpuhk mz;zh kWkyh;r;rp jpl;lk;) Pond Works, NABARD Road Works and School Building Repairs under Panchayat Union School Renovation Programme for the year 2008-09 in Pudukottai District. Mr.K.Rajamani had inspected (i) Annavasal Block, (ii) Thiruvarankulam Block, (iii) Pudukottai Block, (iv) Arimalam Block and (v) Thirumayam Block on 11.06.2008 and 12.06.2008. This Inspection itself was made as per the order of the then Commissioner of Rural Development and Panchayat Raj, Chennai. In the said report dated 20.06.2008, the Additional Director, Rural Development Department, Chennai, has reported certain shortcomings in the estimation prepared for the renovation of the school building works in respect of the Schools in his block. It was also reported that at the time of his inspection, the petitioner was disrespectful towards him. Based on the said report, the impugned Charge Memorandum has been issued containing the following 11 charges:
" Charge No.1: That Thiru.S.A.Xavier, Assistant Executive Engineer has failed to attend the works inspection conducted by the A.D.R.D. Directorate of Rural Development & Panchayat Raj on 18.07.2008 in time. Charge No.2: That Thiru.S.A.Xavier, Assistant Executive Engineer has willfully denied the production of estimates and records during the inspection of school building by Keelapatti Village, Semmatti Viduthi Panchayat, Pudukottai Block on 18.07.2008 to ADRD.
Charge No.3: That Thiru.S.A.Xavier, Assistant Executive Engineer, has misbehaved with the ADRD Thiru.S.Jayakumar, using un-parliamentary language on 18.07.2008 in the time of works inspection and obstructed the ADRD in performing his duties on 18.07.2008 which is unbecoming of a Government Servant.
Charge No.4: That Thiru S.A.Xavier, Assistant Executive Engineer, had failed to adopt the rate of steel as per scheduled of rates of 2008-09 in the estimates approved by him for School Building Works taken up under Panchayat Union School renovation Programme 2008-09.
Charge No.5: That Thiru S.A.Xavier, Assistant Executive Engineer has filed to establish the necessity for different size of steel trusses for a similar work in a different years in the estimates approved by him for School Building works taken under Panchayat Union School Renovation Programme and he has approved the estimates for disposing existing good trusses and purlin as scrap, which would have resulted in wasteful spending of huge money on entirely new trusses.
Charge No.6: That Thiru S.A.Xavier, Assistant Executive Engineer, has failed to adopt the cost to purlin in a uniform rate in the estimates in respect of works taken up under Panchayat Union School Renovation Programme 2008-2009.
Charge No.7: That Thiru S.A.Xavier, Assistant Executive Engineer, has failed to provide Ridge Tiles in the estimates approved by him for the School Buildings taken up under Panchayat Union School Renovation Programme 2008-09. Charge No.8: That Thiru S.A.Xavier, Assistant Executive Engineer, has failed to follow the specification of Rural Roads Published by I.R.C. in the work of Road impressments to Pakkudi to Ananthankudipatti Road taken up under NABARD RIDF XIII in Kunnandarkovil Block (Package No.PDKT-073) as follows:
As per the specification of Rural Roads published by I.R.C. that the foundation for culvert works should be provided 1.5 metre below the bed level. But in the road improvement to Pakkudi to Ananthankudipatti Road taken up under NABARD RIDF XIII in Kunnandarkovil Block (Package No.PDKT.073) he has fixed the foundation at the bed level of the stream. This could have led to failure of foundation due to scour.
He has also failed to provide carriage way width of 3.75 metre and he provided only 3.3 to 3.60 metre in K.M. 1/2 to 4/8. The above defect was pointed out in the State Quality Monitor's Inspection Report dated 20.09.2008.
Charge No.9: That Thiru S.A.Xavier, Assistant Executive Engineer, has failed to follow the guidelines and instructions of Government and of Commissioner of Rural Development and Panchayat Raj while approving the estimates for the work of improvement under AGAMT 2008-09 of:
a) Thattampatti Pillayarkoil Oorani in Vahavasal Panchayat Pudukottai Block taken up at an estimated cost of Rs.5.00 lakhs.
b) Pallavan Oorani in Puthampur Panchayat, Pudukottai Block at an estimated cost of Rs.6.00 lakhs.
c) Periyankal Amman Temple, Oorani in Vazhramanickam Panchayat, Arimalam Block and approved the higher estimate of Rs.5.9 lakhs. D) Nachiyar Oorani in K.Rayapuram Panchayat, Arimalam Block at an estimated cost of Rs.5.20 lakhs. The foundation for the retaining wall in main pond and Baby Pond is more than normal required depth of 0.30 m to 0.45 m.
Charge No.10: That Thiru.S.A.Xavier, has failed to adhere to the norms while approving the estimates of road proposed for different streets in Puthampur Village proposed under NABARD RIDF 2008-2009. Charge No.11: That by committing the said grave irregularities Thiru.S.A.Xavier, Assistant Executive Engineer has failed to maintain absolute integrity and devotion to duty as violated rule 20(i) of Tamil Nadu Government Servants' Conduct Rules, 1973."
5. The learned counsel for the petitioner submitted that the Charge Memo has been issued by the Engineer in Chief of Public Works Department only as dictated by the then Commissioner of Rural Development and Panchayat Raj Department, against whom, the petitioner fought in number of Writ Petitions mentioned hereinabove. Therefore, according to the petitioner, the Charge Memo is the result of the vindicative action on the part of the then Commissioner of Rural Development and Panchayat Raj Department.
6. Secondly, the learned counsel, by referring to the grounds of Writ Petition would submit that as per the Service Law, the competent authority to frame the charges, is the Appointing Authority. In this regard, the parent Department is the Public Works Department. The Charge Memo could be issued only by the Public Works Department. In the Rural Development Department, the petitioner was working on deputation. As per law, if the petitioner has committed any misconduct while working on deputation, that Department should only forward a report to the parent Department and it is for the parent Department/Appointing Authority to peruse the report and the connected records and decide whether to frame the charges or not, and if decided to frame the charges, it is for the Appointing Authority to decide whether it could be framed under Rule 17(a) or 17(b) of the said Rules. But in this case, in the covering letter sent by the Engineer-in-Chief, Public Works Department to the District Collector, Pudukottai under letter No.CII(1)/11389/2008-4 dated 17.03.2009, it has been clearly mentioned that as desired by the Commissioner, Rural Development and Panchayat Raj, Chennai, in the letters cited, he enclosed the Charge Memo intended to serve on Mr.S.A.Xavier. The original record, which has been produced before me would go to show that the then Commissioner of Rural Development and Panchayat Raj himself has framed the charges and forwarded the draft charges to the Public Works Department for framing charges immediately. The records further show that the then Commissioner, Rural Development Department had written letters to Public Works Department as well as to the District Collector to frame charges against the petitioner as per the draft charges forwarded by him. It was only thereafter, the impugned Charge Memo came to be issued. Referring to this record, the learned counsel for the petitioner would submit that it is a clear case of taking revenge against the petitioner for filing the Writ Petitions against the then Commissioner of Rural Development and Panchayat Raj and the then Commissioner of Rural Development and Panchayat Raj has directed the Public Works Department to frame the charges.
7. The learned counsel for the petitioner further submitted that the Appointing Authority of the petitioner was simply swayed by the direction and vindicative action of the Commissioner of Rural Development and Panchayat Raj, because he was a top brass in the bureaucracy. He would further submit that there is no application of mind on the part of the Appointing Authority.
8. The learned counsel would nextly contend that after receipt of the report of the Additional Director of Rural Development and Panchayat Raj in respect of the alleged irregularities, the District Collector, Pudukottai, by her letter in Roc.No.G1/2000/2008, dated 05.08.2008, addressed to the Commissioner of Rural Development and Panchayat Raj had given a detailed reply stating that there was no irregularity or illegality committed by the petitioner at all. Referring to the said letter, which has been filed at page Nos.64 to 68 of the typed set of papers, the learned counsel would submit that the District Collector's report would speak about the conduct of the petitioner. The learned counsel further submitted that the District Collector has further stated that the estimate of renovation of school was under
preparation and was never finalised and not even submitted to the Executive Engineer and then, to the District Collector for administrative sanction. While the estimates were under preparation, the Additional Director of Rural Development looked into the same and found that escalated cost had been given. When it was not finalised, according to the learned counsel for the petitioner, the said allegation is absolutely false.
9. The learned counsel would further submit that the District Collector herself has stated in the letter referred to above that there is no financial commitment till date and the estimate was only at the preparation stage. The said letter of the District Collector explaining that there was no irregularity or illegality committed by the petitioner, was not considered by the Appointing Authority, because the Appointing Authority was frightened by the then Commissioner of Rural Development and Panchayat Raj, the learned counsel contended.
10. In respect of the charges 1 to 3, which relate to the alleged disrespectful behaviour of the petitioner towards the Additional Director of Rural Development and Panchayat Raj, the learned counsel would submit that absolutely, there is no truth and these allegations have been made because of the Writ Petitions filed by the petitioner against the then Commissioner of Rural Development and Panchayat Raj and the contempt proceedings initiated against him. Thus, according to the learned counsel, there is no material against the petitioner and because of the pendency of the charges, he was dropped from promotion list to the post of Executive Engineer. Hence, the petitioner had to approach this Court in this Writ Petition, wherein by order dated 29.04.2010, this Court issued a direction to the Public Works Department to promote the petitioner as Executive Engineer and accordingly, he was promoted. Now, the petitioner is due to retire on 31.05.2015. Thus, making a full narration of facts as well as the law involved, the learned counsel submitted that the Charge Memo is liable to be quashed.
11. A detailed counter has been filed by the Special Secretary to Government, Public Works Department, wherein inter alia, it is stated that it is true that the report was received from the then Commissioner of Rural Development and Panchayat Raj, but after having gone through the said representation and other relevant materials, the Charge Memo was issued, which according to the counter is not illegal. It is further contended that the petitioner can very well face the enquiry and prove his innocence and come out with clean chit, instead, he has rushed to this Court. So far financial loss is concerned, in the counter, it is not stated that there was any such loss to the Government. In the counter, the allegations against the petitioner are narrated and the action taken by the disciplinary authority is sought to be justified. At the end, the respondents have prayed for dismissal of the Writ Petition.
11. The learned Government Advocate stoutly opposed the Writ Petition.
12. I have considered the above submissions.
13. Out of the 11 charges, charges 4 to 11 relate to the preparation of the estimate for renovation of schools in Pudukottai District. Admittedly, the estimates were only under preparation and they were not finalised. The Additional Director of Rural Development and Panchayat Raj, made inspection as directed by the then Commissioner of Rural Development and Panchayat Raj. During the time of inspection, he did not find any other shortcomings in the work performed by the petitioner. He took only the estimation prepared by the petitioner for various schools and found that the prices quoted were escalated ones and therefore, there were several shortcomings. But, it is not denied that the said estimation was not finalised. Above all, the preparation of the estimation by the petitioner is not the end of the matter. After preparation of the estimates by the petitioner, they are to be submitted to the Executive Engineer. The Executive Engineer will again verify the correctness of various details given in the same and only if he is satisfied, he will approve the same. Otherwise, he will simply return the same to the Assistant Executive Engineer. If the Executive Engineer approves the estimate, then the second stage is crossed. Thereafter, the estimate will be submitted to the District Collector for administrative sanction. At this stage, the District Collector considers the report and if he finds any anomaly or shortcomings, he will not grant administrative sanction. After administrative sanction is granted by the District Collector, the third stage is crossed. Only after that, the execution part will begin. Only during the execution, payment is made. Thus, it is a long term process, which is to be undergone to safeguard the interest of the Department. But, in the case on hand, unfortunately, even at the initial stage, when the estimates were under preparation, the Additional Director of Rural Development and Panchayat Raj, inspected the same and stated that there were so many shortcomings and irregularities in the same.
14. When the said report was forwarded to the District Collector, the District Collector rightly repelled all the allegations. In the letter of the District Collector, in Roc.No./G1/2000/2008, dated 05.08.2008, she has categorically denied all the allegations made in the report of the Additional Director of Rural Development and Panchayat Raj. She has stated at the end of paragraph No.1 as "The estimates have been prepared properly covering all the required components." In paragraph No.3 at the end, she has stated as follows:
"Hence for the correctness of spacing for a particular size of trusses has to be approved and communicated to the field officers for preparing common and uniform type of estimates and to execute the works."
In paragraph No.4, the District Collector stated that "For the current year (2008-09) the purchase rate of steel for Pudukkottai District approved by District Collector is Rs.57000/- MT or Rs.57/- per Kg (vide District Collector Rc.No.H1/884/2008-I/ Dated 18.07.08). Based on the purchase rate, now the estimate will be corrected uniformly in all blocks."
In paragraph No.5, she has stated as follows:
"Since, the cost of ridge tiles for a school building amount less than five hundred rupees per building for this no detailed estimate given and could be met well from petty vouchers (for eg.20 Nos. of Ridge tiles for one building 20 x 17.85 = Rs.357.00). However, it is submitted that the missing item will be included in the revised estimate."
In paragraph No.6, she has stated as follows:
"While comparing both estimates it is noted that the data for fixing tiles with cement mortor is missing by over sight in one estimate and calculated as Rs.148/- per sqm. However, this could be rectified while final sanction of the estimate. As instructed, the same will be incorporated by revising the estimate."
In paragraph No.7, she has stated that "The difference is due to the omission of the welding labour rate in the data. However, this Could be rectified while final sanction of the estimate."
In paragraph No.8, the District Collector has stated that "Most of the estimate have not been finalized and submitted for Executive Engineer's perusal. Hence, these estimates have not been submitted to the District Collector for getting Administrative Sanction so far. The Marginal Change is due to cost escalation of steel when compared to the rates of (2007-08) & (2008-09)."
In paragraph No.9, she has stated as follows:
"The Additional Director of Rural Development (SJ) in the inspection notes dated 18.07.08 in para (9) has instructed the field officers to get the directions from the Superintending Engineer (RD) in this regard and to revise the estimates accordingly. Hence, the estimates will be revised accordingly after getting the technical guidelines from the Superintending Engineer (RD) regarding the size of the truss or purlines, span of truss and purlines etc, and regarding the utilization of the old truss before getting the administrative sanction. It is also submitted that there is no financial commitment till date and the estimate in only in preparation stage."
15. From the report of the District Collector, it is crystal clear that there was no financial loss to the Department. Not only that, there was no financial sanction accorded by the District Collector based on the report prepared by the petitioner. Above all, the estimation prepared by the petitioner, is not the end of all. It was only an estimate on the initial stage, which has to be further approved by the Executive Engineer. When all these things are correct, then, the District Collector has to accord administrative sanction. Hence, I do not find any reason for the Disciplinary Authority to frame the charges 4 to 11 based on the report of the Additional Director of Rural Development and Panchayat Raj.
16. In this background, I have every reason to infer that the Appointing Authority of Public Works Department had acted as per the dictates of the then Commissioner of Rural Development and Panchayat Raj. As rightly pointed out by the learned counsel for the petitioner, the Commissioner, Rural Development and Panchayat Raj had no authority to prepare the draft charge sheet and then forward the same to the Chief Engineer, Public Works Department to frame the charges against the petitioner, accordingly. This would only go to expose that the then Commissioner of Rural Development and Panchayat Raj was vindicative against the petitioner, because the petitioner had earlier filed the Writ Petitions and the Contempt Petition before this Court against him. In my considered opinion, had the Chief Engineer, Public Works Department, dispassionately considered these facts, more particularly, the report of the District collector, he would not have framed the charges at all.
17. The then Commissioner Rural Development and Panchayat Raj, who happened to be a top brass in the bureaucracy, has used his power by preparing the draft Charge Memorandum and encroached upon the other Department and forced the Department Head to frame the charges against the petitioner. Thus, what the then Commissioner of Rural Development and Panchayat Raj did, cannot be appreciated at all. Therefore, based on the report of the District Collector and all the other materials and also for the reasons I have discussed above, I have to quash the charges 4 to 11 as totally baseless.
18. So far as the charges 1 to 3 are concerned, they are relating to the alleged disrespectful act of the petitioner towards the Additional Director of Rural Development and Panchayat Raj, when he visited. A reading of the initial report of the Additional Director would show that he had alleged that the petitioner has shown disrespect to him. Subsequently, he has sent a letter to the Director of Rural Development and Panchayat Raj, alleging that when he visited, the petitioner told him that he was not an expert in Engineering and therefore, he was not competent to find fault with his performance. In my considered opinion, there was nothing wrong in making such remarks by the petitioner.
19. Admittedly, the Additional Director of Rural Development and Panchayat Raj, is not an expert in the field of Engineering and he may not have expertise knowledge in the preparation of estimate of renovation of the buildings. The very fact that he had found fault with the preparation of the estimate, when the same was not finalised by the Executive Engineer, would go to show that he was in haste to find fault with the petitioner some how or other, because he had specifically inspected Pudukottai as directed by the then Commissioner of Rural Development and Panchayat Raj, which is evident from the records. Therefore, in my considered opinion, charges 1 to 3 are also as a result of some vindicative action sought to be taken by the Commissioner of Rural Development and Panchayat Raj and so, there can be no truth behind the allegations made in the charges 1 to 3. Therefore, these charges are also liable to be quashed.
20. It is well settled by the Hon'ble Supreme Court that if the charges are mala fide and also the charges are vague, in exercise of the power under Article 226 of the Constitution of India, the High Court should quash the charges vide, judgments in (i) Transport Commissioner v. A.Radha K.Moorthy reported in (1995) 1 Supreme Court Cases 332, (ii) Anil Gilurker v. Bilaspur Rajpur Kshetria Gramin Bank reported in 2011(5) CTC 564 and (iii) Anant R.Kulkarni v. Y.P.Education Society reported in (2013) 4 MLJ 364 (SC).
21. In normal course, when a Charge Memo is issued for initiating the disciplinary action, this Court would not venture into the domain to examine the truthness or otherwise of the allegations, because they are left open for the enquiry officer to decide. But in this case, from the way in which, the petitioner has been dealt with by the officials, the way in which the surprise inspection was ordered by the then Commissioner of Rural Development and Panchayat Raj and the way in which somehow or other the Additional Director attempted to pin the petitioner down, I hold that the charges 1 to 3 and the allegations relating to charges 1 to 3 have been invented only to frame the charges against the petitioner. The Chief Engineer General, Public Works Department had been simply swayed by the report of the then Commissioner of Rural Development and Panchayat Raj, who had issued a positive direction, when there is no jurisdiction for him to direct the Chief Engineer to frame the said charges. The Chief Engineer, as rightly contended by the learned counsel for the petitioner, had not applied his mind and instead, he had simply issued the very same Charge Memo, which was drafted by the incompetent authority viz., the Commissioner of Rural Development and Panchayat Raj. For the above reasons, I have necessarily to quash the Charge Memo.
22. I was told that the petitioner has unblemished record of service. As a result of the same, the District Collector, Pudukkottai, has recorded that the petitioner has got outstanding performance in his duties vide page Nos.73 to 75 of the typed set of papers.
23. In view of all the above, the Writ Petition deserves to succeed. In the result, the Writ Petition is allowed and the impugned Charge Memo is quashed. No costs. Consequently, connected M.P.(MD) Nos.1 and 2 of 2009 are closed and M.P.(MD) No.1 of 2011 is dismissed.
07.08.2012 Index: Yes/No Internet: Yes sj To
1.The Principal Secretary to Government, Public Works (E2) Department, Secretariat, Fort St. George, Chennai - 600 009.
2.The Engineer-in-Chief, WRO and Chief Engineer (General), Public Works Department, Chepauk, Chennai - 5.
S.NAGAMUTHU,J.
sj W.P.(MD)No.13844 of 2009 and M.P.(MD) Nos.1 and 2 of 2009 and 1 of 2011 07.08.2014