Madras High Court
K. Karthikeyan vs The Secretary To Government, ... on 1 November, 2006
ORDER K. Suguna, J.
1. The petitioner in this writ petition has filed Original Application No. 1384 of 1993 on the file of the Tamil Nadu Administrative Tribunal, Madras, challenging the order of the second respondent dated 16.12.1992 and the same has been transferred to the file of this Court and renumbered as W.P. No. 14133 of 2006.
2. By a charge memo dated 16.05.1990, charges on four counts have been levelled against the petitioner for which oral enquiry was conducted and out of the four charges, allegations levelled in charges 1 and 2 were not proved and charges 3 and 4 were proved. For the proved allegations, the minor punishment of stoppage of increment for two years without cumulative effect was imposed by order dated 16.12.1992. Challenging the same, the above said original application has been filed.
2. According to the learned Counsel for the petitioner, the charges levelled against the petitioner are as follows:
(1) that knowing fully well that the past advances were under dispute, he has made further advance to M/s Parasakthi Lorry Booking Office, Neyveli and thus aggravated the dispute on the advances.
(2) that he failed to take action against the persons responsible for the shortage of 45.010 Mts of coal in the purchase of coal and he is therefore, responsible for the shortage.
(3) that the has misappropriated the funds of the Society to the tune of Rs. 7,284.40 by selling goods without bills and retaining the amounts with himself.
(4) that he has shown favouritism to private parties by selling loose leco at reduced prices and thus caused a loss of Rs. 20,166.50 to the society.
3. As far as charge No.3 is concerned, the allegations levelled against the petitioner is that he had sold the goods without the bills and retained the amount with himself. According to the learned Counsel for the petitioner, the bill was raised only subsequent to 22.12.1989 and hence the question of misappropriation does not arise. This argument of the learned Counsel for the petitioner cannot be accepted for the reason that the allegation levelled against the petitioner is that without issuing the bills, he had permitted the movement of the goods from the Society and thereby retained the amount himself. Unless the petitioner proves that only after issuing the bills alone the goods were moved and without bills no goods were delivered, when the petitioner fails to prove this, I am not able to accept the contention of the learned Counsel for the petitioner.
4. As far as the allegation in Count No.4 is concerned, the allegation levelled against the petitioner is that he had showed favouritism to private parties by selling loose leco at reduced price and thus caused loss to the Society. The stand of the learned Counsel for the petitioner is that the petitioner was working as a Special Officer and there is no provision as per which the petitioner has to get permission from the Board to sell the leco at reduced price. These allegations have been levelled against the petitioner for his function as Special Officer of the Coimbatore and Nilgiris District Small Scale Industries Service Industrial Co-operative Society. Even as per the explanation offered by the petitioner, the Board has passed a resolution to sell the coal dust at reduced prices. But when it has been pointed out that no such resolution was passed by the Board to sell the loose leco at reduced price, the petitioner had shifted his stand and taken the above said defence. From this, it can be inferred that unless the Board passes a resolution to sell the leco at reduced price, certainly, the same cannot be sold at a reduced price. That apart, when the petitioner claims that he is having a power to sell the leco at the reduced price, he has to prove that he has got such a power. In the event of the failure of the petitioner to prove that power, the finding of the enquiry officer has to be accepted. As such in my opinion, the finding of the enquiry officer and also the punishment imposed is in tact and no ground has been made out to interfere with the same.
5. According to the learned Counsel for the petitioner since these allegations have been levelled by a charge memo dated 16.05.1990 under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, the petitioner was placed under suspension from 16.02.1990 to 23.07.1991 nearly for a period of 565 days. Subsequent to this, the said period has been treated as leave as detailed below:
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Period days Leave
----------------------------------------------------------------------- 16.02.1990 to 19.07.1990 154 Earned leave 20.07.1990 to 14.08.1990 26 Unearned leave (half pay) 15.08.1990 to 23.07.1991 343 Extraordinary leave without allowance without medical certificate
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According to the learned Counsel for the petitioner, though the punishment is a minor punishment, 565 days of suspension is having an impact on his terminal benefits and also on the pensionary benefits, which led to the financial loss to the petitioner.
6. As far as this point is concerned, though the charges have been framed under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, the punishment imposed is very very minor punishment viz., stoppage of increment for two years without cumulative effect. Though the charges have been framed under Rule 17(b), i.e., for imposing a major punishment, actually after the enquiry, punishment imposed was only a minor punishment.
7. As far as the suspension is concerned, if allegations are pending, which are grave in nature, one can be placed under suspension. But, while framing the charges, the authorities are duty bound to look into and peruse the entire matter and take a decision whether charges have to be framed under Rule 17(a) or Rule 17(b). If charges were framed under Rule 17(a), there is no need to place the delinquent under suspension and the Government has also issued guidelines as to whether to frame the charge under Rule 17(a) or under Rule 17(b). Ultimately, when the punishment imposed is a minor punishment, for which charge is warranted only under Rule 17(a) and not under Rule 17(b). But due to the non application of mind of the authorities concerned, charges have been framed under Rule 17(b) and the petitioner was forced to be under suspension for a period of nearly 565 days from 16.02.1990 to 23.87.1991. Certainly, though it has been regularised as eligible leave, it will have an impact on his pension and other retirement benefits. But if the charges have been framed with due caution and care, certainly, as far as the case on hand is concerned, it should have been framed only under Rule 17(a). As such because of the mistake committed by the respondents, charges have been framed under Rule 17(b), the consequence of which the petitioner was forced to be placed under suspension for a period of 565 days.
8. Though as per Fundamental Rule, if the concerned delinquent is not fully exonerated the period of suspension has to be treated at the discretion of the concerned authority, i.e., it can either be treated as duty period or as eligible leave, but if the punishment awarded is a major punishment, passing an order invoking the above said Fundamental Rule is justifiable. But as far as the case on hand is concerned, as pointed out earlier, a very very minor punishment has been imposed. As such invoking Fundamental Rule, the suspension period cannot be treated as eligible leave.
9. In view of the punishment imposed by the department authorities, the suspension of the petitioner for a period of 565 days is unwarranted and the respondent cannot take advantage of their own mistake and penalise the petitioner and as such treating the suspension period as a leave eligible is not sustainable in view of the above discussion. Hence, as far as treating the suspension period is concerned, the same is set aside and the respondents are directed to treat the period from 16.02.1990 to 23.07.1991 as duty period for awarding the consequential benefits. As far as the punishment is concerned, the same is confirmed.
The writ petition is partly allowed as above. However, there will be no order as to costs.