Madras High Court
R.A.Ramachandren vs The State Of Tamil Nadu on 2 November, 2016
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.11.2016 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN W.P.(MD)No.7707 of 2012 and M.P(MD)Nos.1 and 2 of 2012 R.A.Ramachandren ... Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Chief Secretary, Environment and Forest Department, Secretariat, Chennai. 2.The Divisional Forest Officer, O/o the Divisional Forest Office, Social Forestry Division, Madurai. ... Respondents Prayer: 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 1st respondent in his proceedings G.O.(D).No.96 Environmental ? Forest (F9B) Department dated 20.03.2012 and quash the same as illegal consequentially to direct the respondent to disburse the DCRG amount withheld by them within the period. !For Petitioner : Mr.H.Mohammed Imran ^For Respondents : Mr.K.Guru, Additional Government Pleader :ORDER
The case of the petitioner is that originally he was appointed as Junior Assistant on 10.04.1974, after 5 years of his unblemished service, the petitioner was promoted as Forest Range Officer on 20.11.2000 and he has been worked till date without giving any room for complaints. Thereafter, he was allowed to retire on 30.04.2007 without prejudice to the pending departmental proceedings. The petitioner was given all the retirement benefits, but his DCRG amount alone was withheld due to the pending departmental proceedings.
2.While the petitioner was in service, in the eve of his retirement, the 2nd respondent has issued the charge memo dated 16.04.2007 under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules, 1955 alleging inter alia that due to the petitioner's negligence in implementation of the Tamil Nadu Afforestation Project, financial loss to the tune of Rs.1,75,745/- was caused to the Government.
3.On receipt of the charge memo, the petitioner also submit his explanation to refuting the charges leveled against him. Notwithstanding his explanation, enquiry officer was appointed and the enquiry officer also submitted the report on 05.02.2009 holding that the charge No.1 was proved and Charge Nos.2 and 3 were not proved. The 2nd show cause notice was issued along with the enquiry report that the petitioner has submitted his explanation on 25.10.2010. Pursuant to the same, the 1st respondent by his impugned Government Order dated 20.03.2012 imposed the punishment of recovery to the tune of Rs.1,75,745/- and the same was directed to be recovered from his DCRG and the said punishment was imposed after getting the concurrence from the TNPSC. It is the further case of the petitioner is that the charge memo was issued in pursuance of the report submitted by the Assistant Conservator of Forests, Forest Protection Squad, Madurai, who pointed out some alleged irregularities in implementing the Tamil Nadu Afforestation Project. It was alleged in the said report that the Assistant Soil Conservator found out short fall of 9237 seedlings, 5250 semi circular bunds and 7130 catch water pits and thus caused loss to the Government to the tune of Rs.1,75,745/- and the same amount was directed to be recovered from the petitioner's DCRG by the impugned order.
4.Though the petitioner repudiate the report submitted by the Assistant Conservator of Forest, the same was not taken into consideration by the enquiry officer as well as the 2nd respondent who is the disciplinary authority. In his explanation, the petitioner has categorically stated that the very same Assistant Conservator of Forests had also conducted an enquiry in respect of another village viz. Chithathipuram and pointed out some deficiencies in implementing the Afforestation Project as pointed out in his division and charge memo was also issued to the concerned Forest Ranger as issued to the petitioner.
5.Not satisfying with the said report, femas committee had conducted enquiry in Chithathipuram village and submitted the report of the Assisting Conservator of Forest is not right. Hence, further action in respect of the concerned Forest Ranger was dropped by proceedings dated 04.07.2008 issued by the 2nd respondent. Hence, it is made clear that the report of the Assistant Conservator of Forest based on which charge memo was issued to the petitioner, could not be blindly relied on without verifying contents thereon. Neither the enquiry officer nor the disciplinary authority has given finding in respect of the above said defense of mine. Further despite of the petitioner's request to conduct enquiry by FEMAS committee, no such enquiry was conducted.
6.The petitioner also states that though he has raised various grounds in his explanations, the enquiry officer has not meted out all his contentions and thus rendered his own finding perverse. Further, contrary to the settled principles of departmental enquiry, the enquiry officer has shifted the burden on the petitioner to prove the charges levelled against the petitioner stating that he failed to give any evidence as against him. It is for the disciplinary authority to prove charge framed against him based on preponderance of probability. The burden of the proof always lies on the disciplinary authority, but on the contrary, the enquiry officer shifts the burden on him and the findings of the enquiry officer clearly indicate the same, because of the said incorrect finding, the petitioner was prejudiced and as such the impugned order of recovery based on the above said incorrect finding is unsustainable in law.
7.It is the case of the petitioner is that soon after the completion of work in part, the authorities ought to have verified it periodically i.e. within 45 days as per Section 142 of Tamil Nadu Forest Department Code. If they conducted the verification at the relevant point of time in terms of the above said Section, the petitioner would not have been issued with the charge memo as the report would disclose the real fact that there was no shortage. In respect of Charge 1(c) is concerned, it is alleged that out of 5 check dams, the petitioner constructed 3 check dams outside the RF boundary without intimation or approval from the office. All the 5 check dams were constructed only after getting approval from the 2nd respondent who approved it by his proceedings dated 24.11.2006. Therefore, no discrepancies whatsoever will arise, but on the contrary, the enquiry officer proceeded the enquiry as if the petitioner accepted the Charge No.1(c). The said findings of the enquiry officer are contrary to the facts and the same renders his findings vitiated. In so far as the Charge 1(b) is concerned, no shortfall of seedling as alleged. No recovery of the alleged shortfall of seedling was made. It is categorically held by the enquiry officer that there is no misappropriation. Having find so, the enquiry officer could not be found fault with the petitioner.
8.The case of the petitioner is that even assuming without admitting that there are irregularities in carrying out the Afforestation Project for the year 2006-2007, as per G.O.Ms.No.92, Environment and Forest dated 09.03.1993 and G.O.Ms.No.1 dated 03.01.1994 and G.O.Ms.No.145 dated 21.09.2001, if any loss is caused to the Government while carrying out the various works in the forest department the liability for the same shall be apportioned among the officers as follows:
i) District Forest Officer - 25%
ii) Forest Ranger - 40%
iii) Forester/Forest guard - 35%
9.Contrary to the above provisions of the said G.O., the entire burden of the alleged loss caused to the Government has been fastened on the petitioner and the said G.O. has not been taken into consideration by the 1st respondent. The petitioner also point out that the findings of the enquiry officer has made it very clear that as per the Government Order loss should be apportioned. But the 1st respondent while inflicting the punishment of recovery directed that the entire amount should be recovered from the petitioner. Similarly, charge memo was issued in respect of two Forester for the very same charge, but the recovery was ordered only to the tune of Rs.1,75,745/- to each Forester. The entire loss of Rs.1,75,745/- should be apportioned between the petitioner and the two Foresters as per the G.O.Ms.No.92. As per the said G.O., the said amount was directed to be recovered from each individual separately. The 2nd respondent being the disciplinary authority has evaded from his liability. Therefore, the entire loss was thrown on the burden on the petitioner's shoulder.
10.The petitioner also come forward by saying that the alleged enquiry report conducted by the committee headed by the Assistant Conservator of Forests, has not enumerated the seedlings and semi circular bunds in the proper perspective. Because, the check up has been made randomly. Further, the entire thick forest area of 125 of H.C. was checked up within 5 days and that by itself shows the manner in which the enquiry was conducted. As a result of various natural calamity, there may be some deficiencies in the field for which the petitioner could not be made as scapegoat. Therefore, the impugned order passed by the 1st respondent for the recovery of entire loss from the petitioner is illegal and highly arbitrary for the facts stated in the above. Therefore, he filed the writ petition, challenging the said order passed by the 1st respondent.
11.A counter affidavit has been filed by the 2nd respondent denied all the allegations set out in the affidavit.
12.The petitioner was appointed as Junior Assistant on 11.04.1974 and posted at Udayar Palayam Range of Trichy Forest Division. As per Conservator of Forests, Madurai Circle, S.O.No.177/79, dated 22.08.1979 and Divisional Forest Officer, Vaigai Soil Conservation Division, Periyakulam, the petitioner was appointed as Forester on transfer of service and joined duty on 30.09.1979 in the No.I Range of Vaigai Soil Conservation Division. Later he was promoted as Forest Ranger and posted to Valayar Forest Station as per Principal Chief Conservator of Forests, Chennai Proc. No.B2/74426/2000-2 dated 01.11.2000 and Conservator of Forests, Coimbatore No.23027/2000 E1 dated 14.11.2000 and thereafter on 15.11.2000, the petitioner was joined duty as Ranger, while he was working as Forest Ranger, he was transferred to Madurai Social Forestry Division and posted to Melur Social Forestry Range, as per Principal Chief Conservator of Forests, Chennai as per order in No.B2/17400/2004 dated 31.05.2004 and Conservator of Forests, Madurai in S.O.No.39/2004 dated 04.06.2004. He joined duty at Melur Range on 05.06.2004 and worked there till his due date of superannuation dated 30.04.2007.
13.When the details of liabilities were called for from the past serving stations, for sending retirement proposals to the Principal Chief Conservator of Forests, Chennai. The District Forest Officer, Coimbatore had reported that the Court cases in MCOP.Nos.37 of 2003 and 44 of 2005 filed against the petitioner by two persons claiming compensation in an accident, by a jeep under his control, while he was serving as Forest Ranger of Valayar Forest Station, was pending before the Coimbatore Court. Therefore, the District Forest Officer, Salem, had issued a charge sheet under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, for imposing Major punishments, for not remanding the accused in his custody within 24 hours in the Court and subsequent death of the accused in jail. Further, the following a 100% enumeration works done by the Special Party led by the Assistant Conservator of Forests, Forest Protection Squad, Madurai, for not planting of 9260 seedlings (16X30 cm size poly bag) and not doing 7142 catch-water pits and 274 Semi-circular bunds of value Rs.1,75,745/- and 4 other charges of non-execution of Bufferzone works, negligence and dereliction of duty in bringing of Shanthini kanmai plantation for sale in 2006, negligence and carelessness in preventing illicit felling and attempt to suppress truth from his seniors, delayed submission of reports, involving in in-disciplined activities a charge sheet under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, was issued in Divisional Forest Officer, Social Forestry Division, Madurai ref.No.2060/2007 E dated 16.04.2007.
14.The respondent also states that the above 3 liabilities were reported to the Principal Chief Conservator of Forests, Chennai in the Conservator of Forests, Madurai No.B2/3906/2007, dated 19.04.2007. Considering the gravity of the liabilities, the Principal Chief Conservator of Forests, Chennai in his ref.No.B3/20642/2007, dated 28.04.2007 had permitted the petitioner to retire from service on superannuation on 30.04.2007 afternoon without prejudice to further action pending in the proceedings against the petitioner.
15.The charge sheet has issued by the District Forest Officer, Salem is learnt to be acquitted in favour of the petitioner. (No entries in his Service Register). But the petitioner had given an undertaking that he would adhere to the Court orders issued in MCOP.Nos.37 of 2003 and 44 of 2005, vide his letter addressed to the Divisional Forest Officer, Social Forestry Division, Madurai, dated 10.04.2007, but the outcome of the MCOP cases are yet to be known and the report is awaited from the District Forest Officer, Coimbatore. The charge sheet has issued in Divisional Forest Officer, Social Forestry Division, Madurai, Thiru.P.P.Vetripandian, Divisional Forest Officer, Varushanadu Soil Conservation Division, Theni was appointed as Enquiry Officer, as per Conservator of Forests, Madurai Proc. No.B2/3906/2007 dated 25.04.2007.
16.Furtherance, the appointment of the enquiry officer, he completed the enquiry and submitted his report on 05.02.2009 and the same was served on the delinquent officer on 09.03.2009. The delinquent officer had offered his final explanation on the enquiry officer's report on 16.03.2009. The records on the charge sheet were submitted to the Government for final orders. The Government in the Environment and Forests Department, vide G.O.(D)No.96 Environment and Forests (FR9B) Department dated 20.03.2012, upholding the charge issued on Government loss of Rs.1,75,745/- and dropping of other charges and have ordered for recovering of the Government loss of Rs.1,75,745/- from the Death cum Retirement Gratuity due to the petitioner. Challenging the said order, the present writ petition has been filed.
17.While the petitioner was working as Forest Range Officer, he has impleaded the Tamilnadu Afforestation Project works in 2006 Sallikodangipatti TAP village Bit II. It was inspected then and there by the Divisional Forest Officer, when the work was under progress, but on completion of work 100% monitoring by the special party headed by Assistant Conservator of Forests, Forest Protection Squad, Madurai was taken up and the result was communicated in Madurai Conservator of Forests Lr.No.1187/2007 TAP dated 28.03.2007. During their monitoring a short fall of 9237 seedlings in planting work, 5250 semi circular bunds forming and 7130 catch water pits digging were detected by them. Hence, pointing out there irregularities a memo was issued in Conservator of Forests Madurai ref. No.1187/2007 TAP dated 28.03.2007. The Range Officer, Melur in his representation dated 03.04.2007 had said that the signature from him was not obtained properly while doing the enumeration. In the presence of the Range Officer and their Subordinates the re-enumeration works was completed by the Assistant Conservator of Forests, Forest Protection Squad, Madurai and duly signature obtained in the enumerated figures by them. It shows that the short fall of 9260 seedlings in planting 7142 catch water pits digging and 274 semi-circular bunds forming were detected and accepted by him and communicated in Conservator of Forests, Madurai ref. No.1187/07 TAP dated 13.04.2007.
18.The respondent also states that the Ranger had constructed 3 check dams (out of total 5) out side the RF boundary without intimation and approval of the higher authority and he has charged 20% extra allowance like as if they were constructed in Reserved Forest areas, the total loss to Government to the tune of Rs.1,75,745/- was arrived at for the lapses and a charge memo was issued under Tamil Nadu Civil Services (Discipline and Appeal) Rules ? Rule 17(b) for the irregularities detected. As admitted by the petitioner all the pensionary benefits, except DCRG are to be settled and also provisional pension is being paid to the petitioner. The averments contained in para-5 of the affidavit that the charge memo framed consisted of 3 charges. The above said charges was enquired promptly by the enquiry officer and the enquiry officer held that only charge No.1 is proved and other charges were not proved. Further, the enquiry has followed the usual procedure and the report cannot be said as vague. The petitioner was given an opportunity to defend against the findings of the enquiry officer and he had offered his final explanation on the enquiry officer's report on 16.03.2009. In the process, the opinion of the Tamil Nadu Public Service Commission was obtained, regarding the proposed imposing of the punishment. The Tamil Nadu Public Service Commission had offered its remarks as follows:
?While perusing the defense statement submitted by the delinquent officer, it shows that, instead of defending himself, the delinquent officer had tried to escape from his duties and responsibilities which are not an acceptable one. In his further representation also the delinquent officer had not putforth any valid reasons for consideration. After a detailed enquiry, the inquiry officer had rightly held the charge 1 as proved. Hence for the proven charge the provisional conclusion to recover a sum of Rs.1,75,745/- from his DCRG as arrived by Government is accepted by the Commission.?
19.The Divisional Forest Officer has initiated the disciplinary action after holding him responsible. But the role of his subordinates (two Foresters) have also been taken into account and disciplinary cases have been initiated to show cause for Government loss and punishment also imposed in Divisional Forest Officer Proc. No.6971/2009 E dated 27.01.2010 and awarded reduction of pay to bottom scale for one year with effect from 01.03.2010 without cumulative effect. The petitioner?s contention that the entire loss of Rs.1,75,745/- should be apportioned between one and the two Foresters as per the G.O.Ms.No.92, cannot be conceded, as the work was done independently by him without giving any Forest Advances to his subordinates. The Divisional Forest Officer had taken cognizance of this order before initiation of the disciplinary proceedings against the petitioner, which means the Divisional Forest Officer has no role in the irregularity committed by the petitioner.
20.The Government also carefully considered all the documents evidences and representations of the delinquent officer, the Government decided to hold charge No.1 as proved and for the proven charge, the Government have arrived at a Provisional conclusion to recover a sum of Rs.1,75,745/- from his DCRG and issued a show cause notice in Govt. Lr.12071/FR9B/09-11 E&F dated 25.08.2010 to the delinquent officer directing him to state as to whether he accepts the proposed penalty or not? The delinquent officer has not agreed to the proposed penalty. Hence, the Government have the views of the Tamil Nadu Public Service Commission on this case. The Tamil Nadu Public Service Commission also accepted the decision of the Government for provisional conclusion to recover a sum of Rs.1,75,745/- from his DCRG.
21.The respondent also states that the petitioner was given an opportunity to defend against the findings of the enquiry officer's report.
The petitioner has received the enquiry officer's report on 09.03.2009 and offered his final explanation on the enquiry officer's report on 16.03.2009. The final orders were passed by the Government after consideration all aspects from all the above records. The petitioner could have appealed before the Government on the orders of recovery that he may deemed fit. Therefore, without filing any appeal, the very filing of the writ petition is not maintainable. Therefore, the respondents sought for dismissal of the writ petition.
22.I heard Mr.H.Mohammed Imran, learned counsel appearing for the petitioner and Mr.K.Guru, learned Additional Government Pleader appearing for the respondents and perused the entire records.
23.The petitioner has joined in the service on 10.04.1974 as Junior Assistant and later he was promoted as Forest Range Officer on 20.11.2000 and thereafter Forest Ranger was posted at Madurai. The allegations against the petitioner, the cases are filed in MCOP Nos.37 of 2003 and 44 of 2005 by the individual persons, but the same was acquitted in favour of the petitioner.
24.The petitioner was permitted to retire from his service on 30.04.2007, without prejudice to the pending departmental enquiry. For the dereliction of duty the petitioner was issued charge memo. There are 3 charges were framed against the petitioner out of which charge Nos.2 and 3 were reported by the enquiry officer has not proved and the charge No.1 was proved. Though the petitioner had permitted to retire from service on 30.04.2007 afternoon without prejudice to further action pending against the petitioner.
25.The petitioner also submits his explanation in the charge memo issued against him on 27.09.2007, time and again, this Court and the Hon?ble Apex Court very categorically held that if any enquiry pending against the person, who was in service, the same should be disclosed before his retirememnt, but the petitioner had permitted to retire on 30.04.2007, the petitioner was issued charge memo only after his retirement and he has given explanation on 27.09.2007. Thereafter, the enquiry was proceeded when charge memo was issued against the petitioner along with against two Foresters, the recovery should be ordered for a tune of Rs.1,75,745/- for each Foresters. When the enquiry officer's himself in hisreport says that there is no mis- appropriation, then how the authorities came to know that it was mis- appropriation committed by the petitioner and the entire loss of Rs.1,75,745/- has to be paid by the petitioner himself alone, when the other two person were given lesser punishment and no recovery was ordered.
26.Though the charge memo was issued to the petitioner, the very same charge memo also issued against the Forest Ranger, the FEMAS committee had conducted enquiry in Chithathipuram village and submitted the report of the Assistant Conservator of Forest was holding that there was no shortage and therefore, the action in respect of the concerned Forest Ranger was dropped by proceedings dated 04.07.2008 issued by the 2nd respondent, which is totally violation of principles of natural justice.
27.It is also brought to the notice of this Court by the learned counsel appearing for the petitioner that the Afforestation Project for the year 2006-2007, as per G.O.Ms.No.92, Environment and Forest dated 09.03.1993 and G.O.Ms.No.1 dated 03.01.1994 and G.O.Ms.No.145 dated 21.09.2001, if any loss is caused to the Government while carrying out the various works in the forest department, the liability for the same shall be apportioned among the officers, namely the District Forest Officer is 25%; the Forest Ranger is 40%; and the Forester/Forest guard is 35%. But the respondent has given the entire burden of payment of the entire amount against this petitioner alone which was totally against the Government Orders in G.O.Ms.No.92, G.O.Ms.No.1 and G.O.Ms.No.145.
28.Apart from this, it is the case of the respondent is that the petitioner should have file an appeal against the impugned order to the Government. It is very shocking to this Court that the very same impugned order has been passed by the Government namely, the Secretary Environment Forest Department, Government of Tamilnadu, Chennai dated 20.03.2012. Thus being the case, how the respondent stated that the petitioner should have file an appeal against the impugned order to the Government. In the absence of any provisions or any reasons are given by the respondent in the counter, the Government issued orders against the petitioner. Therefore, the present impugned order charging the petitioner only to pay the entire loss to the Government at the rate of Rs.1,75,745/- is totally wrong and the same is liable to be quashed.
29.In the result:
(a) this writ petition is allowed by setting aside the order passed by the 1st respondent in his proceedings G.O.(D)No.96 Environment-Forest (F9B) Department, dated 20.03.2012;
(b) the respondents are directed to disburse the DCRG amount withheld by them to the petitioner;
(c) the said exercise shall be done within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Chief Secretary, Environment and Forest Department, Secretariat, Chennai.
2.The Divisional Forest Officer, O/o the Divisional Forest Office, Social Forestry Division, Madurai.
.