Madras High Court
N. Nandagopalan vs The Secretary To Government Personnel ... on 24 April, 2006
Equivalent citations: (2006)3MLJ191
Author: N. Paul Vasanthakumar
Bench: N. Paul Vasanthakumar
ORDER N. Paul Vasanthakumar, J.
Page 1727
1. The prayer in this writ petition is to quash the punishment of cut in pension of Rs.200/- per month for 12 months passed by the respondent herein in his G.O.2(D) No. 56, Personnel & Administrative Reforms Department, dated 11.09.1998 with all consequential monetary and service benefits.
2. The brief facts necessary for the disposal of this writ petition is that the petitioner while working in Rural Development Department, was placed under suspension on 29.07.1989 on the ground that an enquiry into grave charge is contemplated. On 23.01.1990 in G.O.Ms. No. 43, the Government had reviewed the order of suspension and ordered that the petitioner should be under suspension as an enquiry is still in progress. On 30.04.1990, the petitioner submitted a representation to the Government for revocation of suspension. In G.O.Ms. No. 570, Rural Development Department, dated 10.07.1990, the suspension was revoked and the petitioner was reverted to Secretariat for being posted as Under Secretary to Government. According to the petitioner, a Charge Memo was issued under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, alleging that during the period from 09.04.1983 to 19.07.1989, there was some irregularity in placing orders with regard to M/s. Alagu Printers, Chidambaram and it is in violation of Panchayat Union Rules, Norms and procedures and caused a total loss of Rs.9,54,994/- to the Government by way of excess payment. On 31.10.1991, the petitioner attained the age of superannuation and he is permitted to retire from the service without prejudice to the continuation of the disciplinary action pending against the petitioner. The petitioner submitted an explanation to the charge memo on 20.11.1991 and denied all the allegations. The petitioner pointed out that he was never in-charge of the establishments of Block Development Officers or Divisional Development Officers and the said officers were never under his control and therefore, there was no chance of exercising undue influence over them as alleged in the charge memo.
3. The petitioner also pointed out that the Divisional Development Officers and Block Development Officers are responsible for alleged loss. The petitioner further averred in the affidavit that in G.O.(D) No. 50 Personnel & Administrative Reforms Department, dated 08.07.1993, the Government had passed orders against the petitioner. In paragraph 2 it is stated that the petitioner was allowed to retire without prejudice and dropping of charge. The petitioner may be given the retirement benefits as per the Rules. The Government issued subsequent G.O. in G.O.(D) No. 28, Personnel and Administrative Reforms Department, dated 07.04.1995 and issued erratum to G.O.50, Personnel and Administrative Reforms Department, dated 08.07.1993, that the Government have decided to drop initiation Page 1728 against the petitioner without prejudice to the disciplinary action under Rule 17 (b) which was pending on that day With reference to the preliminary enquiry report of the Appropriate Authority, dated 26.02.1992. According to the petitioner, the revival of the said charges by issuing a fresh orders after 1 1/2 years that too without prior notice to the petitioner is illegal.
4. It was found that the charges against the petitioner was proved and the petitioner was called upon to submit further report with regard to the deviation of the enquiry officers report. The petitioner submitted his defence statement for the said notice and there after, the impugned order of with holding his pension at the rate of Rs.200/- per month for a period of 12 months by G.O.2(D) No. 56, Personnel & Administrative Reforms Department, dated 11.09.1998. Since, the said order was challenged in the O.A. before the Tribunal, the respondent have not paid the retirement benefits to the petitioner including the pension, even the petitioner retired from the service in 31.10.1991. The learned Counsel for the petitioner at the time of argument submitted that the action of the respondent and imposing punishment is totally erroneous and the said action is in violation of Article 14 of the Constitution of India.
5. The learned Counsel further pointed out that the Government in G.O. (D) No. 28,Rural Development (E2) Department, dated 09.02.2002 ordered as follows:
The Appropriate Authority of Government conducted detailed enquiry into certain allegations against Thiru. M. Nandagopalan, formerly Deputy Director, Office of the Director of Rural Development, Chennai relating to irregularities in placing orders for printing ledgers, booklets etc., for the office use in Panchayat Unions, the Appropriate Enquiry Authority in its report has pointed out incidentally that departmental action may be taken against 28 officials of Panchayat Development Department whose names have been listed in the Annexure to this order, for having placed orders with M/s. Alagu Printers for supply of forms and registers without observing the usual formalities and thereby violated Article 65 of Manual of Panchayat Administration Part-II.
2. The Government have examined the report of Appropriate Enquiry Authority carefully along with the connected records. The Government have considered that there is no case to proceed against the 28 Panchayat Development Officials referred to in the incidental recommendation of the Director of Vigilance and anti corruption for their failure in observing usual tender formalities in placing order and violation of Article 65 of Manual in Panchayat Administration, Part - II and decided to drop further action against them.
3. Accordingly, the Government do and hereby drop further action against 28 officials of Panchayat Development Department referred to in the Annexure to this order in respect of the allegation referred to in para 1 above.
Page 1729 ANNEXURE Sl. No Name and Accused Officer and post last held TVL :
1. V. Ramanathan, B.D.O., Aranthangi
2. N. Lakshmanan, P.A. to Collector, Madurai
3. P. Kanagasabai, JDRD/Project Officer, DRDA, Tiruchirapalli.
4. P.G. Venkatesan, B.D.O., Vridhachalam
5. P. Sambandam, B.D.O., South Arcot
6. D. Venugopal, B.D.O., South Arcot
7. S. Subramanian, B.D.O., South Arcot
8. P.L. Boopathy, B.D.O., North Arcot District
9. A.M. Jayaraman, B.D.O., North Arcot
10. S. Somasundaram, ABDO, Nagapattinam
11. G. Sankaran, B.D.O., (Retd) Trichy
12. K.V. Krishnasamy, B.c.O., South Arcot
13. P. Rajan, B.D.O., South Arcot
14. K.R. Ramachandran, P.A. (PD) , South Arcot
15. M. Selvaraj, B.D.O., South Arcot
16. M. Rajarathinam, B.D.O., Kmoaratchi, S.A.District
17. A. Sowrirajulu, B.D.O., (Retd) Fortnova
18. S. Jayaraman, B.D.O., (Retd), S.A.District
19. V. Ranganathan, B.D.O., South Arcot District
20. R. Rajagopal, B.D.O., (Retd), A.S.District
21. Kannan, B.D.O.,
22. R. Chandrasekaran, P.A (PD), Trichy
23. V. Shanmugasundaram, B.D.O., N.A.District
24. P. Venkatesan, B.D.O., Polur, N.A.District
25. Kannan, B.D.O., Gingee, N.A.District
26. Murugesan, B.D.O., N.A.A.District
27. K. Srinivasan, B.D.O., Gummidipoondi, Chengai - MGR District.
28. Tmt. T.S. Jeyam, B.D.O., Poondi, (Retd) Chengai - MGR District.
6. When this G.O. was furnished to this Court, the learned Government Pleader was directed to get instruction. On instruction, the Government Pleader submitted, even though there are 28 other persons involved in the same allegations, six officials involved in the irregularity expired and 17 other officials were already retired from service and the date of occurrence was prior to four years, the department action could not be taken against majority of the person for the reasons stated. It is further contended that no charges were filed against the 28 other officials, whose name are found in G.O.(2D) No. 28, Rural Development (E2) Department, dated 09.02.2002.
7. I have considered the rival submissions and relevant papers. On a perusal of the G.O.(2D) No. 28, Rural Development (E2) Department, dated 09.02.2002, it is clear that the Appropriate Enquiry Authority held that the Departmental action may be taken against 28 officials of the Block Page 1730 Development Department, whose names have been listed in the order for having placed the orders to M/s. Alagu Printers, Chidambaram and register without observing formalities and there by violated Article 65 of the Manual of Panchayat Administration, Part - II. The Government states that no enquiry was conducted and no recommendation to initiate action against 28 other persons were issued by the Enquiry Authority. On the contrary, it is stated that the Appropriate Enquiry Authority in its report pointed out that departmental action may be taken against 28 officials for the very same reason against which the petitioner was proceeded with and the impugned punishment is issued.
8. Therefore, the submissions of the learned Counsel for the petitioner is sustainable in view of the identity of the charges and the Enquiry Authority having recommended to initiate Departmental action for involvement of the other 28 persons in the same incident. It is not open to the respondent to initiate action against the petitioner and the said impugned order of the respondent is in violation of the , Director General of Police and Ors. v. G. Dasayan. In another decision of this Court reported in 2002 WLR 449, T.R. Venkatachary v. The Special Officer, Corporation of Madurai and Anr., this Court quashed the similar order of punishment (dismissal), wherein in paragraph 5, it is held as under:
5) ...As rightly argued, the order of dismissal imposed on the petitioner is violative of Article 14 of the Constitution of India. In this regard, learned Counsel for the petitioner has very much relied on a Division Bench decision of this Court in M. Rajamanickam v. The Executive Director, Bharat Heavy Electricals Limited reported in 1997 W.L.R.536 : 1997 (3) L.L.N.550. In similar circumstance of imposing punishment of removal on one person, the Division Bench, after referring to the principle laid down by the Supreme Court in Sengara Singh v. State of Punjab , has held as follows : (para 26)
26. We are of the view that there is no iota to evidence which would differentiate the case of the present appellant from that of the other employee Meenakshisundaram. This discrimination is writ large on the record and the Court cannot overlook the same. Therefore, we see no justification in treating the appellant differently without pointing out how he was guilty of more serious misconduct or the degree of indiscipline in this case was higher than compared to that of Meenakshisundaram. Learned counsel for the management failed to explain to us the distinguishing features and therefore, we are satisfied in putting both of them in the same bracket. Therefore, we have no hesitation to come to the conclusion that the treatment meted to the present appellant suffers from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution of India. The Court must accordingly interpose and quash the discriminatory action.
Page 1731 In the light of the similar factual position, I am of the view that the principle laid down in the above Division Bench judgment is squarely applicable to the facts of the present case. In this case, I have referred to the nature of charges levelled against all the 3 persons as seen from the proceedings of the Commissioner of the Corporation, dated 14.11.86. In the absence of any explanation before me as to how the petitioner was guilty of more serious misconduct or the degree of dereliction of duty in this case was higher than compared to that of the other two persons, as observed by the Division Bench, I am of the opinion that the present action against the petitioner is undoubtedly hit by Article 14 of the Constitution of India.
Writ Appeal filed against the judgment was also dismissed in W.A. No. 3263 of 2002, dated 17.03.2004, wherein in paragraph 8 and 9, it is held as under:
8. The learned single Judge relying upon the judgments rendered in Sengara Singh v. State of Punjab held that in view of the nature of charges leveled against all the three persons being same and in the absence of any explanation before him as to how the petitioner was guilty of a more serious misconduct or degree of dereliction of duty in the case was higher than compared to that of the other two persons, the petitioner before him was discriminated by awarding a more serious punishment of dismissal.
9. On going through the order of the learned single Judge, we find no reason to interfere with the same as we have already held that the charges leveled against all the three were not only similar in nature but on the other hand, the disciplinary authority had come to the conclusion that the part played by other two delinquents were more serious when compared to the part played by the respondent.
9. It is well settled in law that if employees are involved in the same incident, the Department should proceed against all or should not proceed against none. There is no discretion to proceed against some of employees and no action against the other employees, since they are identically placed and their involvement being identical. In the instruction submitted by the Government Advocate, it is not stated as to how the petitioner's involvement is not similar to other 28 persons. In the absence of such distinct feature, the proceedings conducted by the respondent against the petitioner and imposing punishment on the basis of the charge is illegal and hence the impugned order is set aside.
10. The learned Counsel for the petitioner submits that the impugned order of withholding of pension at the rate of Rs.200/- per month for 12 months was passed on 11.09.1998 and in spite of the said final order passed, the petitioner's retirement benefits are not settled merely because the petitioner filed O.A. No. 8938 of 1998 before the Tribunal. The respondent Page 1732 may be justified in not releasing the retirement benefits up on 11.09.1998. However, there is no justification for non payment of retirement benefits including the pension after 11.09.1998, for which the petitioner is entitled to get interest for the belated payment. Hence the respondent is directed to calculate the retirement benefits payable to the petitioner on the basis that the petitioner retired from service on 31.10.1991 and the pensionary benefits payable from 01.11.1991 along with the other benefits and pay bank interest to the petitioner from 11.09.1998 till the settlement of the retirement benefits. The amount payable to the petitioner shall be calculated and paid to the petitioner within eight weeks from the date of receipt of a copy of this order.
11. The writ petition is allowed with above directions. No costs.