Madras High Court
K.J.Rajaraman vs / on 20 December, 2021
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.(MD)Nos.2157 & 2158 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.12.2021
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.(MD)Nos.2157 & 2158 of 2018
and
W.M.P.(MD)Nos.2409 to 2412 of 2018
K.J.Rajaraman ...Petitioner in W.P.(MD)No.2157 of 2018
K.Maruthamuthu ...Petitioner in W.P.(MD)No.2158 of 2018
/Vs./
The Principal Secretary to Government,
Health and Family Welfare (D2) Department,
St.George Fort,
Secretariat, Chennai – 9. ...Respondent in both WPs
COMMON PRAYER:- Writ Petitions - filed under Article 226 of the
Constitution of India, praying for the issuance of Writ of Certiorari,
calling for the records pertaining to the impugned G.O.(Pa)1320 and
G.O.(Pa)1321 dated 23.06.2017 passed by the respondent and quash the
same.
For Petitioner : Mr.S.Viji (in both WPs)
for Mr.S.Deenadhayalan
For Respondent : Mr.D.Sadiq Raja (in both WPs)
1/12
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.2157 & 2158 of 2018
Additional Government Pleader
COMMON ORDER
These two writ petitions have been filed by Accountants working in the Treasury Account Department, challenging Government orders in G.O.(Pa)1320 and G.O.(Pa)1321 dated 23.06.2017. The impugned Government Orders impose a punishment of postponement of increment for a period of three years without cumulative effect.
2.The facts leading to the imposition of punishment are that allegations were laid by way of charge memo issued to the petitioners on 25.06.2013 setting out five charges, as follows:
“Charge1 :
“gpd; ,izg;g[ 1 (m) tpy; fhQqk; thpir vz; 4 Kjy; 8 tiua[s;s gl;oay;fspy; nghypg; bgahpy; nfl;g[ bra;ag;gl;l Cjpaj;jpy; CPS/GPF vz; Fwpg;gplg;gl;Ls;sJ/ Mdhy; CPS/GPF gpoj;jk; bra;ag;gltpy;iy/ gpoj;jk; bra;ag;glhjjw;F gl;oaypy; ahbjhU Fwpg;g[k; fhzg;glhjjhy; gl;oaiy jzpf;if bra;ahky; mDkjpj;jjd; K:yk; muR gzk; ifahly; bra;a fhuzkha; ,Ue;Js;sPh;/ Charge 2 :
“j/eh/tp//bjh/70 gjpntl;oy; fyk; 11y;2/12
https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018 fUt{yj;jpy; xj;jpirt[ bra;j vz; nghlg;glhYk; (Huzur Treasury Voucher Number) moj;jy; jpUj;jyhf cs;stw;iw ftdpf;ftpy;iy mJ bjhlh;ghf ty;yk; murpdh; Muk;g Rfhjhu tl;lhu kUj;Jt mYttUf;F bjhptpf;fg;gltpy;iy/ ,t;tifapy; j/eh/tp/bjh/ 70 gjpntL jtWjyhf gad;gl;likf;F chpa mwpt[iufnsh Fwpg;g[fnsh ty;yk; murpdh; Muk;g Rfhjhu tl;lhu kUj;Jt mYtyUf;F tH';f mjid cjtp fUt{y mYtyhpd; ftdj;jpw;F vLj;J bry;y jtwpajd; K:ykhf bjhlh;eJ; muRg; gzk; ifahly; bra;ag;gl fhuzkhf ,Ue;Js;sPh;.” Charge 3 :
“ty;yk; murpdh; Muk;g Rfhjhu tl;lhu kUj;Jt mYtyh; jpUkjp/Rfe;jp filrpahf (Last Spell) gzpapy; nrh;e;j ehsd;W bgwg;gl;l khjphp ifbahg;gk;. khjphp ifbahg;g gjpntl;oy; gjpag;gltpy;iy/ vdnt ,jid fz;fhzpff; j; jtwpa[s;sPh”; Charge 4 :
“kpd;dQq jPh;it K:yk; rk;gsk;
tH';fg;gLtjhy; gpujp khjk; 23?k; njjpf;Fs; fUt{yj;jpy; Cjpag;gl;oay;fs; rkh;g;gpf;fg;gl ntz;Lk;/ Mdhy;
xt;bthU khjKk; fhyk; fle;J gl;oay;
rkh;g;gpf;fg;gl;Ls;sd/ ,J bjhlh;ghf gzk; bgWk; mYtyhplnkh my;yJ gl;oay; bfhz;L te;j jpU/v!;/tp$a gh!;fhplk; chpa mwpt[iufs; tH';fnth my;yJ vr;rhpf;if bra;anth jtwpa[s;sPh;/ Charge5 :
“tl;lhu kUj;Jt mYtyuhy;
Kd;dpiyg;gLj;jg;gl;l gl;oay;fspy; ty;yk; murpdh; Muk;g Rfhjhu epiyaj;jpy; ,sepiy cjtpahsuhfg; gzpg[hpa[k; jpU/v!;/tp$agh!;fh; vd;guhy; ifahly; bra;ag;gl;l bjhifahd njhuhakhf U:/29.28.603/-:?3/12
https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018 y; ,tuhy; mDkjpf;fg;gl;l gl;oaypy; cs;s kpifj; bjhif U:/29.28.603/-?: I jLf;f jtwpajhy;. jkpH;ehL muR gzpahsh; elj;ij tpjp 20(1) ia kPwpa[s;shh;.”
3.In sum and substance, the charges were that there had been misappropriation of Government money through bills submitted by the petitioners that had been claimed in false names, as well other irregularities including the insertion of names of certain Doctors, who were stated not to be in service of the Directorate. The proceedings thus covered employees in two Departments, the Department of Treasury Accounts (hereinafter referred to as Department 1) as well as the Department of Health and Preventive Medicine (hereinafter referred to as Department 2).
4.Drawing from Rule 9A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 (in short 'Rules'), which provides for conduct of a common enquiry in a situation where officials of more than one department or more than one government service was involved, the case was assigned to the enquiry officer in Department 2, being the Department of Health and Preventive Medicine. Enquiry report was formulated and forwarded to the disciplinary authority.4/12
https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018
5.In line with the procedure stipulated under the Rules, a copy of the enquiry report was furnished to the delinquents and after hearing their representations and the findings of the enquiry officer on the charges laid against the delinquents, orders of imposition of punishment came to be passed, as against the erring officials, two of whom are before this Court.
6.Mr.S.Viji, learned counsel appearing for the petitioner would argue that the procedure formulated for enquiry was contra to the Rules, as the petitioners being employees of Department 1, were bound by the Treasury Rules. That apart, he would allege non-compliance with the principles of natural justice, insofar as though they had sought an opportunity of cross examination of the delinquents in Department 2, such opportunity had been denied. Thirdly, they would submit that even assuming that Rule 9A of the Rules would be the appropriate Rule for conduct of enquiry, the procedure followed in this case does not adhere to the scheme of enquiry as contemplated under Rule 9A.
7.Per contra, Mr.D.Sadiq Raja, learned Additional Government Pleader would, while objecting to the submissions put forth by petitioner, 5/12 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018 takes me through Rule 9A as well as the charges as laid against the petitioners in his attempt to defend the impugned orders passed.
8.Heard both learned counsel as well as perused the relevant Rules and other documents circulated for my benefit. The charges in this case have been extracted in the preceding paragraphs. The explanation furnished by the petitioner to the charges laid do not challenge the competence of the enquiry officer in this case ie., the Deputy Director of Health Services, Nagapattinam.
9.Having not raised this point either before the enquiry officer nor before the authority who imposed the punishment, it is not appropriate that the issue of competence be challenged at this juncture. However and in order to convince myself that the selection of the authority was done in line with Rule 9A, certain particulars were sought for from the respondents. Rule 9A is extracted to understand the scheme of appointment of the competent authority, as contemplated:
“Rule 9A: Authority Competent to institute Disciplinary Proceedings where more than one Government Servant is involved:-
In any case where more than one Government servant of the same Department are jointly involved 6/12 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018 or whose cases are interconnected, the authority competent to institute disciplinary proceedings shall be the immediate higher authority in that Department in respect of the Government servant who holds the highest post among such Government servants and the disciplinary proceedings against all of them shall be taken together. Where inquiry is to be conducted in terms of Rule 17(b), the said authority may either himself conduct the inquiry or get the inquiry conducted by an Inquiring Officer appointed by the authority competent to impose major penalty in respect of the Government servant who holds the highest post among such Government servants. The said authority shall remit the case, at the appropriate stage, to the authority competent to impose any of the penalties specified in Rule 8 in respect of the Government servant who holds the highest post among such Government servants in that Department for passing final orders: (vide G.O.Ms.No.26, Personnel and Administrative Reforms (N) Department, dated 15.2.2008, w.e.f. 15.2.2008) Provided that in the case of Government Servants belonging to different departments who are jointly involved or whose cases are interconnected, the Government shall be the authority competent to initiate disciplinary proceedings and impose any of the penalties specified in Rule 8 and in such cases the administrative department of Secretariat in respect of the Government servant who holds the highest post will initiate such disciplinary proceedings and issue final orders after complying with the entire procedure laid down in these rules :7/12
https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018 Provided further that this rule shall not apply to cases in which officers coming under the administrative control of the Chief Secretary to Government are jointly involved.”
10.While Rule 9A contemplates disciplinary action in the case of more than one Government servant in the same department, the Proviso addresses disciplinary action addressing multiple government servants belonging to different departments. It is the proviso that has been invoked in the present case.
11.The procedure contemplated under the proviso is two pronged. The government is the competent authority to initiate disciplinary proceedings by identifying the authority who is to conduct enquiry and impose the penalty specified. The second limb of the proviso states that the process of enquiry and imposition of penalty shall be by the administrative department of the Secretariat pertaining to that government servant who holds the highest post amongst the officers in question.
12.Coming to the first limb, G.O.(Rt).No.1249, dated 8/12 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018 23.12.2013 kick starts the process of initiation of disciplinary proceedings. The G.O., identifies the delinquents both in both departments, states that an enquiry is proposed to be conducted against the erring officers in respect of which charges framed, goes on to identify the enquiry officer to be appointed as Dr.N.Kalusivalingam, Deputy Director of Health Services, Nagapattinam and directs him to conduct enquiry in line with the procedure laid down in Rule (1)(b) of the Rules. This Government order is in line with the prescription in the first limb of the proviso.
13.Coming to the second limb, the selection of the enquiry officer has been done by identifying the delinquent, who holds the highest cadre of posts among all delinquents, being the medical officer in Department (1). No infirmity is found in the procedure that is seen to have been followed and no infirmity infact has been pointed out in this regard by the petitioner. The challenge to the procedural irregularity is thus rejected.
14.As far as the allegation that the principles of natural justice have been violated, records in the possession of learned State counsel 9/12 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018 contains nothing to indicate that such a request, for cross-examination, has been put forth. In fact, a specific query has been put to the petitioners as to whether they wish to cross examine the co-delinquents, to which they have responded categorically, stating 'No'. This ground is also, thus, rejected.
15.Yet another submission put forth is that the entire exercise is revenue neutral insofar as the monetary loss, admittedly caused by the acts of omission and commission by the petitioners, have been made good by one of the delinquents. This would hardly exonerate the petitioners as the purpose and object of the disciplinary proceedings is to correct lapses in the conduct of the officials and thus, reversal of monetary loss by recovery of the amount would only be secondary. Thus and, insofar as no infirmity has been made out in the impugned order, the same is sustained. With this, the impugned orders are confirmed and the writ petitions are dismissed with no order however, as to costs. Consequently, connected Miscellaneous Petitions are closed. 10/12 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018 20.12.2021 Internet :Yes Index :Yes/No 11/12 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.2157 & 2158 of 2018 DR.ANITA SUMANTH, J.
sm Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To The Principal Secretary to Government, Health and Family Welfare (D2) Department, St.George Fort, Secretariat, Chennai – 9.
Common Order made in W.P.(MD)Nos.2157 & 2158 of 2018 Dated:
20.12.2021 12/12 https://www.mhc.tn.gov.in/judis