Madras High Court
A. Sivakumaran vs The Government Of Tamil Nadu on 21 December, 2020
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.16782 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2020
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P.No.16782 of 2014
and
MP No.1 of 2014
A. Sivakumaran ... Petitioner
Vs.
1. The Government of Tamil Nadu
Rep. By its Secretary,
Housing and Urban Development Department,
Fort St. George,
Chennai – 600 009.
2. Tamil Nadu Housing Board,
(Board Secretariat),
Nandanam,
Chennai – 600 035.
3. Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai – 600 035. .... Respondents
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus calling for the records relating to
the order passed by the 2nd respondent in Proceedings No.DC-1/82528/2004,
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W.P.No.16782 of 2014
dated 09.03.2007 and consequential order dated 02.05.2014 passed by the
1st respondent in Letter No.24370/2007-12 and quash the same further direct
the respondents to pay all the benefits and the recovered amount to the
petitioner.
For Petitioner : Mr.S.Parthasarathy
For Respondents : Mr.A.N.Thambidurai
Special Government Pleader for R1
Mr.V. Bharathkumar for R2 & R3
ORDER
Petitioner has come up with this writ petition to quash the order passed by the 2nd respondent in Proceedings No.DC-1/82528/2004, dated 09.03.2007 and the consequential order dated 02.05.2014 passed by the 1 st respondent in Letter No.24370/2007-12 and for a further direction to the respondents to pay all the benefits and the recovered amount to the petitioner.
2. The case of the petitioner is that he joined as Assistant Engineer in the respondents-Tamil Nadu Housing Board and retired from service on 31.07.2013. While he was in service, charge memo was issued on the petitioner on 03.08.2003 by framing two charges. The primary charge 2/9 https://www.mhc.tn.gov.in/judis/ W.P.No.16782 of 2014 relates to procurement of surplus materials for Tirur S & S Scheme and thereby dead stock was accumulated, which resulted in loss amounting to a sum of Rs.5,01,221.61. Subsequently, disciplinary proceedings was initiated against him. Even though the enquiry Officer held the charges not proved as against the petitioner, the 3rd respondent / disciplinary authority took a dissenting view and held the charges proved. Subsequent to the same, he was imposed with a punishment of recovery of Rs.2,50,611/- as well as stoppage of increment for a period of five years with cumulative effect, excluding the period of leave, if any, availed vide order dated 29.10.2004. Aggrieved over the order of punishment, he preferred an appeal before the 2nd respondent, and the 2nd respondent, however, modified the punishment to one of stoppage of increment for a period of two years without cumulative effect alone vide his order dated 09.03.2007. Challenging the order of the 2nd respondent / appellate authority, he preferred an appeal before the 1st respondent to set aside the order of punishment. Though he retired from service on attaining the age of superannuation, his retiral benefits were settled withholding Rs.2,50,611/-. Due to pendency of appeal, he filed writ petition in W.P. No.10687 of 2014 3/9 https://www.mhc.tn.gov.in/judis/ W.P.No.16782 of 2014 and pending writ petition, the 1st respondent rejected the appeal filed by the petitioner on the ground that second appeal cannot be entertained. However, it is the claim of the petitioner that one S.Chandra Kumar, who was also charge sheeted by the 3rd respondent had filed W.P. No.19225 of 2007 and the same was allowed and his case also stands similar footing. Hence, he filed this writ petition praying for issuance of similar orders.
3. Learned counsel for the petitioner submits that the surplus materials are unserviceable in nature and the concerned authority accorded approval for valuing and for public auction and thereby such materials were auctioned to the tune of Rs.1,31,600/- and thus the same cannot be treated to be a loss incurred by the Board. Moreover, the charges framed against the petitioner on 03.08.2003 is different from the charge memo issued on 03.03.2004. Further he submits that after a lapse of 12 years from the alleged date of occurrence, charge memo was issued, which is non est in law and barred by limitation. He also drew the attention of this Court to directions issued by this Court in W.P. No.19225 of 2007, which is similar to the case of the petitioner herein. Therefore, the impugned recovery order 4/9 https://www.mhc.tn.gov.in/judis/ W.P.No.16782 of 2014 under challenge is liable to be set aside and accordingly, prays for allowing this writ petition.
4. Mr.V.Bharath Kumar, learned counsel appearing for the respondents 2 and 3 vehemently opposed the contentions made by the learned counsel for the petitioner and he placed his arguments in consonance with the averments made in the counter affidavit. He also submits that failure on the part of the petitioner to dispose of the surplus materials resulted in loss to the respondent/Board. Owing to the loss incurred by the respondents, petitioner was imposed punishment of recovery of a sum of Rs.2,50,611/- as well as stoppage of increment for a period of five years with cumulative effect by the 3rd respondent / disciplinary authority, which was subsequently modified. Further the appeal preferred before the 1st respondent was not maintainable as no provision was provided for filing second appeal. The authorities have appreciated the matter independently and passed the order and, therefore, no interference is called for.
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5. Even though the 1st respondent, who sailed along with the 2 nd respondent filed separate counter, however, has adopted the argument advanced on behalf of the 2nd respondent in sum and substance.
6. Heard the learned counsel on either side and perused the materials available on record.
7. It is not in dispute that the punishment of recovery as well as stoppage of increment for a period of five years with cumulative effect was imposed on the petitioner and subsequently the punishment with regard to stoppage of increments alone modified to two increments without cumulative effect. It is seen that the petitioner preferred an appeal before the 2nd respondent initially and after passing of orders by the appellate authority, he once again preferred another appeal before the 1st respondent, though there was no provision for preferring the second appeal. Further, it is borne out by records that the said second appeal as well as the present writ petition has been filed by the petitioner after his retirement i.e., on 31.07.2013. This Court perused the decision relied on relating to a 6/9 https://www.mhc.tn.gov.in/judis/ W.P.No.16782 of 2014 similarly placed person, one S.Chandra Kumar and is of the view that the ratio in the said case would not apply to the case of the petitioner. The petitioner has approached this Court with a long delay and the delay has not been properly explained. Merely because a person, who is alleged to be similarly placed like the petitioner has been granted a benefit, would not make the petitioner entitled for a similar benefit, as the facts and circumstances of each case alone would decide the outcome of the case. As already held, the decision relied upon by the petitioner is not applicable to the case of the petitioner and further the delay and laches on the part of the petitioner in filing the present petition having not been explained, the relief sought for by the petitioner cannot be acceded to.
8. Further, it has been the consistent view that the Courts shall not interfere with the punishment unless it is shown to be shocking the conscience and disproportionate to the delinquency. In the case on hand, the punishment imposed was modified by the appellate authority, which shows application of mind and, therefore, sitting in judicial review, this Court is not inclined to interfere with the punishment imposed relating to 7/9 https://www.mhc.tn.gov.in/judis/ W.P.No.16782 of 2014 recovery. Therefore, this Court is of the considered view that the impugned orders does not call for any interference by this Court.
9. For the foregoing reasons, this writ petition is devoid of merits and accordingly, the same stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
21.12.2020 Index : Yes / No Speaking order : Yes/No vsi2 To
1.The Director of Local Fund Audit, Directorate of the Local Fund Audit, Kuralagam, 4th floor, Chennai – 600 108.
2.The Assistant Director of Local Fund Audit, O/o The Assistant Director of Local Fund Audit, Villupuram.
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vsi2 W.P.No.16782 of 2014 21.12.2020 9/9 https://www.mhc.tn.gov.in/judis/