Madras High Court
P.D.Arumairaj vs The State Of Tamil Nadu on 4 September, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.09.2017 CORAM: THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN W.P.No.5243 of 2005 and WP.MP.No.2727 of 2007 P.D.Arumairaj ... Petitioner Vs 1.The State of Tamil Nadu, rep. by The Secretary to Government, Higher Education Department, Chennai-9. 2.The Director of Technical Education, Guindy, Chennai-25. 3.The Principal, Government College of Technology, Coimbatore 641 013. ... Respondents Petition is filed under Article 226 of the Constitution of India for the issuance of writ of certiorarified mandamus to call for records in pursuant to the impugned order passed by the 1st respondent in G.O.Ms.No.1 Higher Education Department dated 02.01.2003 and quash the same and consequently direct the respondents to include the name of the petitioner in the panel of the year 2000-2001 issued in G.O.Ms.No.21 Higher Education Department dated 21.01.2002 and promote him retrospectively with effect from 21.01.2002 as Assistant Professor with all monetary benefits, arrears of pay in the revised scale of pay and all consequential service benefits. For Petitioner : Mr.Prem Narayanan For Respondents : Mr.R.Govindasamy Special Government Pleader for respondents 1 to 3 O R D E R
This writ petition has been filed by the petitioner seeking a writ of certiorarified mandamus to call for records in pursuant to the impugned order passed by the 1st respondent in G.O.Ms.No.1, Higher Education Department, dated 02.01.2003, to quash the same and consequently direct the respondents to include the name of the petitioner in the panel of the year 2000-2001 issued in G.O.Ms.No.21, Higher Education Department, dated 21.01.2002 and promote him retrospectively with effect from 21.01.2002 as Assistant Professor with all monetary benefits, arrears of pay in the revised scale of pay and all consequential service benefits.
2. The case of the petitioner is that he was working as Senior Grade Lecturer in Civil Engineering Department in the third respondent College. Before he was appointed as Lecturer in the year 1984, the petitioner was a practicing Engineer in the construction line with various companies and also holding passport. According to the petitioner, he proceeded on leave from 01.07.1996 to 30.09.1996 on personal grounds. Again, he had extended the leave from 01.10.1996 to 20.12.1996 and joined duty on 23.12.1996. Thereafter, he had applied leave from 03.02.1997 to 06.03.1997 and totally, he availed 205 days leave with proper leave applications.
3. On 28.04.1999, the second respondent issued a charge memo alleging that the petitioner had obtained passport without disclosing the fact that he was a Government servant and suppressing the said fact, he had gone abroad without obtaining prior permission from the Government. The petitioner had submitted his explanation to the charge memo. Enquiry Officer was appointed to inquire into the charges levelled against the petitioner. According to the petitioner, the Enquiry Officer without affording an opportunity as contemplated under the Rules, submitted his report holding that charges were proved. Based on the enquiry report, the first respondent issued the impugned order of punishment imposing stoppage of increment for one year with cumulative effect. Challenging the same, the petitioner has filed the writ petition.
4. Resisting the writ petition, the first respondent filed counter stating that since the petitioner had absented from duty and had obtained passport by suppression of facts, which is in violation of the Tamil Nadu Government Servants Conduct Rules, he was issued with charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. Only after considering the report of the Enquiry Officer, the first respondent issued the impugned order imposing punishment. According to the first respondent, on 26.06.2003, the petitioner submitted a review petition to the Government against the punishment awarded and the same is under consideration of the Government. The petitioner was given all reasonable opportunities to defend his case and no specific point as to the lapse in the enquiry proceedings has been put forth by the petitioner.
5. I heard Mr.Prem Narayanan, learned counsel for the petitioner and Mr.R.Govindasamy, learned Special Government Pleader appearing for the respondents and also perused the materials available on record.
6. The learned counsel for the petitioner submitted that the enquiry has been conducted without affording reasonable opportunity and without following the procedure contemplated under law. In fact, the enquiry was conducted in a mechanical manner without application of mind and that based on the erroneous report of the Enquiry Officer, the first respondent has issued the impugned order imposing the punishment of stoppage of increment for one year with cumulative effect and that the learned counsel prayed for setting aside the same. He would further submit that the respondent authorities are trying to include his immediate junior in the panel for the year 2000-2001 for promotion to the post of Assistant Professor and the petitioner's name was deferred on account of the pendency of the charges.
7. Per contra, the learned Special Government Pleader submitted that in the enquiry, the petitioner was given sufficient and reasonable opportunity to defend his case. He would submit that during the conduct of enquiry or even afterwards, the petitioner never made any complaint in this regard. According to the learned Special Government Pleader, the crucial date for preparation of promotion panel for the post of Assistant Professor for 2000-2001 was on 01.03.2000. As on the said crucial date of 01.03.2000, charges were pending against the petitioner. Hence, his name was not included in the panel for 2000-2001. He would further submit that a review petition filed by the petitioner to the Government is pending.
8. It appears from the records that the petitioner, who was working as Lecturer (Senior Grade) in the third respondent College applied for long leave from 01.07.1996 to 20.12.1996 and from 03.02.1996 to 06.03.1997 and absented himself from duty. According to the respondents, their investigation reveals that the petitioner had obtained passport No.0158669 dated 08.01.1996 by suppression of facts and in violation of Rule 24A of the Tamil Nadu Government Servants Conduct Rules.
9. It also appears that six charges were framed against the petitioner and the charge memo was duly served on him. Since the explanation submitted by the petitioner to the charge memo was not satisfactory, Enquiry Officer was appointed to inquire into the charges. Accordingly, enquiry was held and the Enquiry Officer came to the conclusion that all six charges were proved against the petitioner. The first respondent, after considering the report of the Enquiry Officer, passed the impugned order.
10. In the case on hand, nothing has been produced to show that during enquiry, the petitioner was not given sufficient opportunity to defend his case. Further, as rightly contended by the learned Special Government Pleader, during the conduct of the enquiry or afterwards, the petitioner never made any complaint about the non-affording of an opportunity to him.
11. On a perusal of the typed set of papers, it is seen that on 01.11.2000, the Enquiry Officer has sent a notice to the petitioner calling upon him to appear before him on 13.11.2000 at 11.00 a.m. for enquiry in relation to the charges levelled against him. It is also seen from the report of the Enquiry Officer that the petitioner had personally appeared before him on 13.11.2000 and he was heard. When such being the report of the Enquiry Officer, it is not fair on the part of the petitioner to contend that he was not afforded sufficient opportunity in the enquiry. Therefore, the ground of non-affording of sufficient opportunity pleaded by the petitioner is not acceptable.
12. As far as holding of passport by the petitioner is concerned, it is the say of the petitioner that prior to his Government employment, he was practicing as Engineer in the construction line and that he obtained the passport. On the other hand, the respondents contended that the investigation reveals that the petitioner had obtained the passport only in the year 1996 by suppression of facts.
13. The petitioner has failed to produce any record to show that he had obtained the passport before joining the Government service. On the other hand, in the counter, the first respondent has categorically stated that the petitioner had obtained passport No.0158669 only on 08.01.1996 by suppression of facts.
14. From the above statement of the first respondent, it is clear that the petitioner had obtained the passport only during Government service by suppressing the facts that too without obtaining No Objection Certificate from the Government. Therefore, it is clear that the aforesaid act of the petitioner is in violation of Rule 24A of the Tamil Nadu Government Servants Conducts Rules. Moreover, the petitioner has never intimated the Department that he was holding a passport and the same has been obtained prior to his entry in the Government service. Only after framing of charges, the petitioner had stated that he had obtained the passport prior to his entry in Government service. No documentary evidence was produced by the petitioner to show that he had obtained the passport prior to his entry in Government service.
15. It is pertinent to note that as against the punishment imposed on the petitioner, he had preferred a review petition to the Government and according to the respondents, the review petition is under active consideration of the Government. The same has not been denied by the petitioner.
16. Qua the claim of the petitioner that during the pendency of the charges under Rule 17(b), he is eligible to be promoted to the post of Assistant Professor and that because of the charge memo, his name was not included in the panel for the year 2000-2001 for promotion to the post of Assistant Professor is concerned, it was contended by the first respondent that as on the crucial date, i.e., 01.03.2000, since charges were pending against the petitioner, his name was not included in the panel for 2000-2001. Further, as on the crucial date for the preparation of panel for 2003-2004, the punishment awarded to the petitioner was in currency. It is also the say of the first respondent that Government servants cannot be considered for promotion during the currency of punishment. However, in the counter affidavit filed on behalf of the first respondent, it has been stated that the petitioner has been promoted as Assistant Professor (Civil Engineering) in Government Engineering Colleges vide G.O.Ms.No.187, Higher Education (l1) Department, dated 28.6.2006. Since after filing of the writ petition, the petitioner was given promotion, there is no need to elaborate upon this aspect any further. In any event, this Court does not find any illegality in the impugned order passed by the first respondent and the writ petition is liable to be dismissed.
17. In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
04.09.2017
vs
Index : Yes
Internet : Yes
Note:Issue order copy on 05.10.2018
To
1.The Secretary to Government,
Higher Education Department,
Chennai-9.
2.The Director of Technical Education,
Guindy, Chennai-25.
3.The Principal,
Government College of Technology,
Coimbatore 641 013.
M.V.MURALIDARAN, J.
vs
W.P.No.5243 of 2005 and
WP.MP.No.2727 of 2007
04.09.2017