Madras High Court
B.S.Ranganathan vs The Managing Director on 19 November, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2012 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.4713 of 2002 B.S.Ranganathan ... Petitioner vs. 1.The Managing Director, Tamil Nadu Water Supply and Drainage Board, No.31, Kamarajar Salai, Chepauk, Chennai-5. 2.The Superintending Engineer, Tamil Nadu Water Supply and Drainage Board, Salem, Namakkal Circle, Salem. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus to call for the records pertaining to the Charge Memo No.93532/Estt (D.P..II)/A5/98-8, dated 26.11.1999 and the Board proceedings No.93532/Estt.(DP)/A5/98-23, dated 13.08.2001, both passed by the first respondent, quash the same and further direct the first respondent to settle all the retirement dues to the petitioner immediately. For Petitioner : Mr.C.Regurajan For Respondents : Mrs.S.Thamizharasi Standing Counsel for TWAD * * * * * O R D E R
The prayer in the writ petition is for issuance of a writ of certiorarified mandamus to quash the Charge Memo, dated 26.11.1999 and the Board proceedings, dated 13.08.2001, both passed by the first respondent and to direct the first respondent to settle all the retirement benefits due to the petitioner immediately.
2. The short facts of the case are as follows:
The petitioner, who is the Post Graduate in Engineering, joined the services of the Government of Tamil Nadu as a Junior Engineer in Public Health Engineering Department during 1965 and during 1970 he was promoted as an Assistant Executive Engineer. When the Tamil Nadu Water Supply and Drainage Board (hereinafter referred to as 'the Board') was constituted during 1971, by a special enactment called as Tamil Nadu Water Supply and Drainage Board Act, 1971, he gave his option to become an employee of the Board and he was placed in the same position of the Assistant Executive Engineer in the Board and during 1980 he was promoted as an Executive Engineer and holding the post of Executive Engineer since then.
3. Further, he submits that from 01.06.1985 to 25.06.1987 he was posted as in-charge of the Hill Area Development Division at Udhagamandalam and thereafter he was transferred to Coimbatore. While he was working as such in Coimbatore, he was issued with an order, dated 31.07.1987, suspending him from service with immediate effect on the ground that an enquiry into grave charges against him was pending followed by the issue of the order of suspension and he was issued with a charge memo, dated 09.11.1987. The sum and substance of the charges was that there had been certain alleged irregularities in Udhagamandalam Water Supply Improvement Scheme, which was executed by him. He submitted his explanation, on 28.12.1987, denying the allegations levelled against him, explaining about the circumstances and the right schedule given to him to carry out such a different job. Though he submitted his explanation, as early as on 28.12.1987, for nearly four and half years the Department neither took any further action nor revoked his order of suspension. Therefore, he approached this Court by filing a writ petition in W.P.No.4155 of 1992 seeking direction upon the respondent Board to reinstate him into service by revoking the order of suspension and this Court directed the respondent Department to commence and complete the enquiry, if they so desire, within a period of three months from the date of receipt of a copy of the order, failing which the petitioner would be automatically entitled to be reinstated into service without prejudice to the disciplinary proceedings on the charges. Despite the order of this Court, the Board neither completed the enquiry nor reinstated the petitioner into service till July, 1992. Hence, he filed a contempt petition in Cont.P.No.369 of 1992 before this Court and thereafter, the Board by proceedings dated 19.08.1992, revoked the order of suspension and reinstated him into service. For the said charges, no enquiry officer was appointed till 01.12.1998 and on that date, by order of the Board, the charges in the charge memo dated 09.11.1987 was withdrawn based on the orders of this Court. The petitioner further submits that in the meanwhile, the Board issued another charge memo, dated 25.06.1990 alleging that he had stacked material in a rented store yard without the permission of the Superintending Engineer. The said allegation was referred to the period when he was in-charge of Udhagamandalam Water Supply Improvement Scheme and it also pertained to the same work. For the said charge memo, he gave his explanation on 06.01.1992 denying the allegations levelled against him. However, an enquiry was conducted on 01.12.1991 and after the enquiry, the charges were dropped vide proceedings dated 01.07.1996.
4. The petitioner further submits that after revocation of his suspension on 19.08.1992, he was issued with another charge memo, dated 01.09.1992, alleging responsibility for defective construction of Ground Level Service Reservoir (GLSR) at St.Marry's Hill, Finger Post and a Clear Water Sump at Parson Valley and for which he submitted his explanation on 11.05.1993. However, an enquiry was conducted on 28.03.1996 and 29.03.1996 after a period of three years and subsequently the charges were dropped by order dated 05.07.1996. In all the charges stated above, except the charges, which was dropped, no other enquiry was conducted till this Court passed order on 16.07.1998. As a matter of fact, the non-conducting of enquiry by the Board for so many years in spite of the order of this Court is an act of contempt. The revocation of suspension by the orders of this Court did not give any liberty to the Board to conduct and complete the enquiry at any time. Similarly placed persons were already promoted as Superintending Engineers, Chief Engineers and Executed Director. The charge memo, dated 01.09.1992, was finally dropped by an order, dated 05.07.1996.
5. Further, the petitioner submits that in such circumstances, he was once again placed under suspension from 04.08.1994, by order dated 30.07.1994, in consequence of sanction given by the Board for prosecution of alleged irregularities committed in Udhagamandalam Water Supply Improvement Scheme. The said sanction was for the same charge alleged to have been committed while he was in-charge of Udhagamandalam Water Supply Improvement Scheme. It is a settled law that it is not a matter of routine to suspend an employee, when sanction is accorded for criminal prosecution and when this was the legal position yet he was placed under suspension without any application of mind. The said suspension was revoked by the order of this Court dated 16.07.1998. By the time, his suspension was revoked, he joined duty on 11.08.1996 and completed four years of suspension. But, in the criminal case in C.C.No.20 of 1994, charges have not been framed and the case is now posted for questioning. In the meantime, another charge memo, dated 21.11.1997, alleging various allegation regarding non-provision of Air Value and Water Hammer devices etc., was issued, which also pertained to the execution of Udhagamandalam Water Supply Improvement Scheme. In the said charge memo, the charges were with regard to profuse leakage of water from the clear water sump was a repetition and on that charge already an enquiry was conducted and the particular charge was dropped by order, dated 05.07.1996. Yet another charge memo, dated 22.12.1997, was issued alleging that he received an amount of Rs.10,000/- from a local representative of the firms for receiving the substandard HDPE pipes. This allegation was pertaining to the issue of execution of the same project. Since the Board was issuing charges one after another and all related to the Udhagamandalam Water Supply Improvements Project and since the Board was not inclined to conduct any enquiry inspite of the order of this Court, he filed a writ petition in W.P.No.8046 of 1998 before this Court seeking for direction upon the respondent to conduct an enquiry for all the charges pertaining to the execution of Udhagamandalam Water Supply Improvements Project within a time limit and this Court directed the respondent to have a comprehensive charge memo framed and serve the petitioner with the same within a period of 12 weeks from the date of receipt of a copy of the order and conduct an enquiry and conclude the same within a period of six months thereafter.
6. The petitioner further submits that subsequently his suspension was revoked as per the orders of this Court and he was directed to join duty on 04.08.1998 and thereafter he joined duty on 11.08.1998. Subsequently, the Board has not conducted any enquiry as scheduled by this Court. Instead, it came with a miscellaneous petition in W.M.P.No.2132 of 1999 praying to conduct and complete the two enquiries on the two charge memos, dated 21.11.1997 and 22.12.1997, respectively with two enquiry officers already appointed and consequently permit them to issue final orders on the basis of the enquiry report to be submitted by the Enquiry Officer and this Court, by order dated 25.02.1999, allowed the said miscellaneous petition by way of directing the respondent to complete the enquiries strictly within a period of six months from that date and the petitioner was directed to submit his explanation within a period of four weeks from that date. After passing of the said order, the Board has stated that there are only two charge memos and since two different enquiry officers are appointed, it was submitted that the comprehensive enquiry could not be conducted and hence, this Court directed to conduct two enquires on the charge memos, dated 21.11.1997 and 22.12.1997 and granted time limit of six months. Though the time limited granted had expired on 24.08.1999, the enquiry was not completed within the time limit.
7. The petitioner further submits that he attained the age of superannuation on 30.11.1999 and he was also permitted to retire from service on the afternoon of 30.11.1999 without prejudice to the disciplinary case and the criminal case pending against him. Since the Board was well aware of his date of retirement, the Board should have made efforts to progress and to complete the enquiry complying with the orders of this Court dated 25.02.1999. Therefore, it is a willful violation of the orders of this Court. In such circumstances, he received another charge memo, dated 22.11.1999 and 26.11.1999, wherein many charges were alleged. In the first place, the very issue of the above charges is directly against the orders passed by this Court on 15.07.1998 and the second place the audit objections are directly converted into charges for which he had already given his explanation to the audit objections. Had the Board applied it's mind on the explanations submitted by him to the audit paras there would not be any necessity to frame the charge against him. As per the dictum laid down by the Supreme Court and High Courts, the audit objections are not liable to be transferred as the charges are without application of mind. Taking note of the above facts and circumstances, he gave a detailed reply, on 20.04.2001, highlighting the above legal aspects in the matter. On receipt of the same, the Board either should have dropped the charges or should have informed this Court when W.P.No.8046 of 1998 was heard. It was under the impression that except the two charges, the Board had no other charges to proceed with since there were only two charges for conducting the enquiry. Now, by the impugned proceedings, the first respondent has appointed an enquiry officer for conducting an enquiry in the charge memo, dated 22.11.1999 and proceedings dated 27.07.2001, which are made in utter violation of the orders of this Court. Being aggrieved with the same, the petitioner has filed this writ petition seeking the relief as stated above.
8. The first respondent has filed a counter affidavit on behalf of himself and on behalf of the second respondent stating that the Accountant General (Audit), Chennai, in his factual statement on Hill Area Development Programme, for the year 1987-1988, had pointed out certain irregularities committed in execution of Udhagamandalam Water Supply Improvement Scheme. The said Scheme was intended to augment the water supply to Ooty Town and contemplated provisions of distribution lines in new areas for about 10 Kms., and remodeling of the existing distribution system. Based on the orders of the Board, High Density Polyethylene (HDPE) Pipes required to be used on the distribution system were ordered on rate contract supplies in January and February, 1987. The required quantity of pipes ordered on supplies were about 64,135 meters and out of which 60,024.63 meters of pipes were received. The work of laying, jointing and testing (including the cost of specials) for various zones of the distribution system were split up and entrusted to seven local un-reputed firms based on tenders and 230 agreements in all were entered into with them during 1986-87 and 1987-88 keeping the value of each agreement within Rs.50,000/-.
9. Further, the first respondent submits that out of 60,024.63 meters of pipes received, only a small quantity of 500 meters of pipes valued at 0.27 lakhs were actually issued and used upto May, 1988 and the balance quantity of 59,524.63 meters of pipes valued for Rs.42.65 lakhs were lying in the stockyard unused. However, it was noticed that part payments were made to the seven contractors for laying and joining of pipes (including cost of specials) for 73,105 meters for Rs.101.87 lakhs though no work was done except supply of flanges and pipe ends with reference to the certificates furnished by the departmental officers. As the agreement rate was for finished item of work in site, payments should not have been made for unfixed materials (flanges and pipe ends). In as much as no work was done and pipes were not issued and laid, the measurements recorded in the measurement books and check-measurements were false and fictitious. While making part payment to the contractors on running account bill, the usual deduction of 5% amounting to Rs.5.09 lakhs was not made. This amounted to an unauthorized and aid to the contractors, besides inadmissible payments made to them for unfixed specials. The petitioner, who was working as Executive Engineer in Hill Area Development Project Division at Ooty from 01.06.1985 to 26.06.1987 was held responsible for the above irregularities. Hence, charge was framed against him, vide charge memo dated 26.11.1999 under Regulation No.9(b) of Tamil Nadu Water Supply and Drainage Board Employees' (Discipline and Appeal) Regulations, 1972.
10. The first respondent further submits that despite several reminders, the petitioner did not submit his reply to the charge memo framed against him. Finally, in exercise of the powers conferred under Regulation No.9(f) of Tamil Nadu Water Supply and Drainage Board Employees' (Discipline and Appeal) Regulations, 1972, the Managing Director, Tamil Nadu Water Supply and Drainage Board, vide proceedings dated 13.08.2001 appointed an enquiry officer superior in rank to the delinquent officer to inquire into the charges framed against him and to submit the enquiry report thereon. Based on that, the enquiry officer called the petitioner on various dates to attend the enquiry, but the petitioner refused to do so and also he tried to delay the enquiry proceedings in an evasive manner by raising certain frivolous objections. The Enquiry Officer had therefore sought for clarification from the Managing Director in this regard. The Enquiry Officer thereupon was directed to conduct an exparte enquiry, after giving him a final call to attend for the enquiry by duly sending the communication with proper acknowledgment. In the meantime, he has moved this Court and obtained an order of interim stay for the charge framed against him and for the appointment of the Enquiry Officer vide W.P.Nos.4712 and 4713 of 2002. In view of the above, the Enquiry Officer was directed not to conduct any enquiry with the accused officer until further orders of this Court are passed on the interim stay granted.
11. Further, the first respondent submits that the above charges were framed based on the objections pointed out by the Accountant General (Audit) in his factual statement on the Hill Area Development Programme for 1987-1988, on the irregularities committed by the petitioner during his tenure as Executive Engineer in Hill Area Development Project Division at Ooty. The impugned charge memo, which is challenged is based on Accountant General's Audit objection on the irregularities committed by the petitioner during his tenure as Executive Engineer in Hill Area Development Project Division. The petitioner was issued with two more charges, based on the criminal investigation report of the Director of Vigilance and Anti Corruption on two cases, viz., relating to the irregularities committed in the purchase of HDPE pipes for Udhagamandalam Water Supply Improvement Scheme and for the acceptance of bribe. This Court, in Cont.P.No.392 of 2000, on 12.01.2001, has held that enquiry in all respects should be completed within a period of six months. Based on which, these two cases have been finalized and final orders have been issued in B.P.Ms.No.221, dated 08.12.2000 and B.P.Ms.No.41, dated 07.02.2002, respectively. He was suspended since sanction for prosecution was accorded, taking into account the nature of the charges alleged.
12. The first respondent further submits that this Court in W.P.No.8046 of 1998 directed the Board to have a comprehensive charge memo framed and the suspension was revoked and therefore he was reinstated into service on 04.08.1998. However, the enquiry could not be completed within the stipulated time and hence the respondent filed a miscellaneous petition in W.M.P.No.2132 of 1999 for extension of time before this Court and this Court extended the time for six months on 25.02.1999. However, the enquiry could not be conducted hence another petition for extension of time came to be filed. At the time of filing of the extension petition, only two charges were pending. Subsequently, the petitioner was issued with charge memos on 22.11.1999 and 26.11.1999 based on the audit report and he was fully aware of the charges pending against him on the date of passing of order in Cont.P.No.392 of 2000 and he did not challenge the same since the same pertains to the audit objections. Hence, the allegation of wilful violation of the orders of this Court is totally false. In the meanwhile, charges were framed, as already stated, based on the Accountant General's objections. Hence, a charge memo was issued on 26.11.1999 and in the meantime, he filed the said contempt petition before this Court. The audit objections relate to the irregularities committed by the petitioner. The explanation offered by him was examined and it was found that the reply given by him was not satisfactory and hence charges were framed. It is false to state that the present charge memo was already covered by the earlier charge memos. They have no right to initiate any disciplinary proceedings since the Court order pertains only to the charges, wherein final orders have been issued in B.P.Ms.No.221 on 08.12.2000 and B.P.Ms.No.41, on 07.02.2002, as per the orders of this Court in Cont.P.No.392 of 2000. Therefore, it was prayed to dismiss the writ petition.
13. The highly competent counsel Mr.C.Regurajan appearing for the petitioner submits that the petitioner is a postgraduate in Engineering and entered into Tamil Nadu Government Service as a Junior Engineer in Public Health Engineering Department in the year 1965. In the year 1970, he was promoted as Assistant Executive Engineer. Subsequently, the Tamil Nadu Water Supply and Drainage Board was constituted and the petitioner has been placed in the same position. Thereafter, he was promoted as Executive Engineer. The petitioner had also worked at Hill Area Development Division, Udagamandalam and subsequently transferred to Coimbatore. At that point of time, a charge memo was issued on him stating that he had committed irregularities. Thereafter, he had submitted an explanation on the said charge memo. However, enquiry was not conducted. Hence, he approached this Court by way of writ proceedings. Subsequently, the suspension order of the petitioner was revoked on 19.08.1992 and he was reinstated in service. As such, the charge memo has become defunct. Thereafter, the respondent had conducted an enquiry and charges were dropped on 01.07.1996. Initially, the charge memo was issued in the year 1987 and subsequently, the charges were dropped on 01.07.1996 after enquiry. Therefore, the impugned order for enqiry has been given as an afterthought. The highly competent counsel further submits that the petitioner had received one more charge memo dated 26.11.1999 and the respondent had not settled the retirement dues to the petitioner. Hence, the highly competent counsel entreats the Court to set-aside the impugned order passed by the first respondent and settle the terminal benefits.
14. The highly competent counsel Mrs.S.Thamizharasi appearing for the respondents submits that the Accountant General had pointed out that some irregularities had been committed in the execution of Udagamandalam Water Supply Improvement Scheme. The said scheme was intended to augment the water supply to Ooty Town. On the basis of Accountant General report, the proceedings had been initiated. For the said scheme, the required quantity of pipes ordered on supplies was about 64,135 meters pipes, but 60,024.63 meters of pipes were received. The balance quantity of papers viz, 59,524.63 meters of pipes valued for Rs.42.65 lakhs were lying in the stockyard unused. However, it was noticed that the payments were made to the contractors for Rs.101.87 lakhs, for which, work was not done. As such, the petitioner had committed irregularities. Hence, the charge was framed against the petitioner. After receiving the charge memo, the petitioner did not give any reply. After giving sufficient opportunities, the petitioner had not submitted any reply. Instead of that, he had approached the Court and obtained stay order. Therefore, the petitioner had been reinstated. However, on the same issue, no findings have been given by the Enquiry Officer. In order to determine the veracity of the irregularities which has been committed by the petitioner, an enquiry officer has been appointed to conduct a comprehensive enquiry.
15. On considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on either side and on perusing the impugned order of the respondents, this Court does not find any discrepancy in the impugned order passed by the first respondent herein. This Court is of the view that on the basis of charge memo, no comprehensive enquiry had been conducted so far. Therefore, if the respondent is permitted to conduct a detailed enquiry, the petitioner will not be prejudiced. The retirement benefit issue could be decided after a comprehensive enquiry as per the first respondent's impugned order dated 13.08.2001. Hence, the above writ petition is dismissed. There is no order as to costs.
19.11.2012
(2/2)
Index : Yes/No.
Internet : Yes/No.
r n s
To:
1.The Managing Director,
Tamil Nadu Water Supply and
Drainage Board,
No.31, Kamarajar Salai,
Chepauk, Chennai-5.
2.The Superintending Engineer,
Tamil Nadu Water Supply and
Drainage Board,
Salem, Namakkal Circle,
Salem.
C.S.KARNAN, J.
r n s
W.P.No.4713 of 2002
19.11.2012
(2/2)