Madras High Court
Government Of Tamil Nadu vs Ruchen S. Barua on 14 May, 2009
Author: D.Hariparanthaman
Bench: P.K.Misra, D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.05.2009 CORAM THE HONOURABLE MR. JUSTICE P.K.MISRA and THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.12313 of 2008 and M.P.No.1 of 2008 1.Government of Tamil Nadu Rep. By the Secretary to Government Environment and Forests Department Fort St.George, Chennai 600 009. 2.The Principal Chief Conservator of Forests Panagal Buildings, Chennai 600 015. ... Petitioners VS. 1.Ruchen S. Barua 2.Central Administrative Tribunal Represented by its Registrar, High Court Buildings, Chennai 600 104. 3.The Union of India Rep. By the Secretary to Government of India Environment and Forests Department, New Delhi. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorari, calling for the records to the order dated 24.01.2008 made in O.A.No.850 of 2006 on the file of the Central Administrative Tribunal, Madras. For Petitioners : Mr.G.Sankaran Special Government Pleader For Respondent-1 : Mr.M.Ravi O R D E R
D.HARIPARANTHAMAN, J.
The writ petition is to quash the order dated 24.01.2008 passed in O.A.No.850 of 2006 by the Central Administrative Tribunal, shortly the Tribunal, the second respondent herein. The Government of Tamil Nadu and the Principal Chief Conservator of Forests (hereinafter referred as the PCCF) are the writ petitioners.
2.The first respondent herein was directly recruited to the Indian Forest Service and was allotted to Tamil Nadu Cadre in 1977. He has rendered 32 years of service. While so, the first petitioner issued a charge sheet in Letter No.33392/FR.Spl.A/97-2 dated 16.04.1998 against the first respondent for the alleged misconduct committed during his service as Conservator of Forest, Social Forestry Monitoring Circle, Chennai from 04.02.1992 to 18.06.1996. The charge sheet was based on the audit report and the reports dated 12.06.1997, 04.07.1997 and 22.07.1997 of the Chief Conservator of Forests (Research), Chennai.
3.Three charges were made and those charges are as follows:-
"CHARGE-I That you ( Thiru) R.S. Barua,IFS., while working as the Conservator of Forests, Social Forestry Monitoring, Office of the Chief Conservator of Forests (Social Forestry), Chennai15 from 4-2-92 to 18-6-96 have purchased various materials and also carried out various works in the Vana Vigyan Kendras under the SIDA aided Tamil Nadu Social Forestry Project during the years 1993-94 and 1994-95 through Co-operatives societies. While placing orders to those societies you have failed to assess their credibility and to adopt the normal official routines like calling for tenders and quotations. The rates quoted by the Societies were approved by you at face value and the Societies have adopted rates which are two or more times more than the real rates of the products and the products supplied by them are pre-dominantly found to be sub-standard. Thus you have failed to prevent the loss of Government funds and thereby contravened the provisions of rule 3(1) of the All India Services (Discipline and Appeal) Rules, 1968.
CHARGE-II That you (Thiru) R.S.Barua, IFS., while working as the Conservator of Forests, Social Forestry Monitoring, Office of the Chief Conservator of Forests (Social Forestry), Chennai-35 from 4-2-92 to 18-6-96 have sanctioned a total sum of Rs.2,70,75,683/- (Rupees Two Crores seventy lakhs seventy five thousand six hundred and eighty three only) to various Societies towards carrying out certain works and for supply of materials to Vana Vigyan Kendras, under the SIDA aided Tamil Nadu Social Forestry Project during the year 1993-94 and 1994-95. You have sanctioned payments to those Societies and the Societies supplied sub-standard goods and in certain cases supply was effected partly and also the works executed by them are found to be sub-standard. The value of discrepancy by this way was assessed to Rs.73,87,923/-. Thus you have failed to prevent the loss to the Government thereby contravened the provisions of Rule 3(1) of the All India Services (Conduct) Rules, 1968.
CHARGE-III That you (Thiru) R.S.Barua, IFS., while working as the Conservator of Forests, Social Forestry Monitoring, Office of the Chief Conservator of Forests (Social Forestry), from 4-2-92 to 18-6-96 have purchased various stores and articles and also carried out various works in the Vana Vigyan Kendras. The records were not properly maintained by you in your office and as result of which the value of the 109 works amounting to Rs.1,55,85,527/- could not be assessed in the absence of the appropriate records. Thus you have failed to take proper care to have proper records for the expenditure from the Government funds, thereby contravened the provisions of Rule 3(1) of the All India Services (Conduct) Rules, 1968".
4. The crux of the charges is that he effected purchases from the Societies without following the procedure and sanctioned payments to the Societies which supplied sub-standard goods and executed sub-standard works and also he failed to maintain the records relating to the works executed, resulting in huge loss to the Government.
5.Based on the charge sheet, an enquiry was held. The Enquiry Authority submitted its report dated 13.10.2000. In the enquiry report, the Inquiry Authority held that all the three charges were partly proved. Those findings alone are extracted here-under:
"At the end of the discussion on Article I of the charge sheet the enquiry officer has concluded:
"An over all assessment of article 1 to 5 of the charge no:- From the assessment of the charge, defence of the accused officer, and available records I am of the opinion that
(i) There were procedural flaws in general and in specific in case of allotment of the work supply of neem cakes to M/s. Ravi Agro Service to the tune of Rs.2,44,000. However, no financial loss to Government is evident as the quantity of the neem cake for which payment has been made brought to account".
The second Article of charge relates to short supply by co-operative societies as well as supply of sub-standard articles leading to loss of Rs.73,87,925. The enquiry officer's conclusion on this charge is as follows:
"Overall assessment of the evidences provided reveals that the lapses have occurred to the tune of Rs.73,09,910/- for which the Rangers/ACF/Societies have been made responsible by the Chief Conservator of Forests (Research). The accused officer is not found directly responsible. However is partly responsible for not check measuring 10% of the works in time so as to detect the defects, if any and take timely action against the concerned, thereby the charges are partly proved".
The third Article of charge relates to non-maintenance of proper records. The enquiry officer's finding on this charge is as follows:
"The committee's report indicates the various works carried out, completed, partly completed or not completed, stock accounted/not accounted etc. It does not indicate that proper reords are maintained by them. However for the lapses the Rangers/ACF/Society should be made responsible primarily.
He has stated that there was no AG's Audit objection on these points. This does not come under the purview of enquiry officer. However, this can not be an excuse for not maintaining the files or records properly.
An over all assessment of the charge reveals that the accused officer is partly responsible and the charge partly proved."
6.The Disciplinary Authority communicated the said enquiry report to the first respondent vide Lr.No.2038/FR.Spl.A/2000-10 dated 27.11.2000 and sought his views on the same.
7.The first respondent submitted his representation dated 14.03.2001 on the enquiry report and requested to drop the charges. The first respondent pointed out that in the enquiry neither witnesses were examined nor documents were marked on behalf of the Department. He pleaded to drop the charges on the ground that there was no evidence to prove the charge. He also pointed out that in similar cases, the actions taken against the officers were dropped and he gave those instances.
8.In view of the pendency of the disciplinary proceedings, his name was not included in the panel for promotion to the post of Chief Conservator of Forests. Therefore, he approached the Tribunal and the promotion panel was set aside. The private respondents approached this Court by filing writ petitions in W.P.Nos.16796 to 16798 of 1998 etc., batch cases. Those writ petitions were disposed by a Division Bench of this Court on 11.10.1999 directing the Government to include the name of the first respondent in the promotion panel. Accordingly, he was promoted as Chief Conservator of Forests with effect from 12.12.1997.
9.Again he was sought to be overlooked for promotion to the post of PCCF. Hence, he filed Original Application in O.A.No.540 of 2004 before the Tribunal. The Tribunal passed an order dated 15.09.2004 to consider the case of the first respondent for promotion subject to the outcome of the disciplinary proceedings. Thereafter, based on the said order, he was promoted as Additional Principal Chief Conservator of Forests. The relevant passage from the said order is extracted here-under:
"6.It is seen from the Chronology of events as narrated in the Original Application that the alleged acts of misconduct relate to the period 1993 and even after a lapse of eleven years, the disciplinary case has not been finalized. Eleven yers is certainly a long period in the career of an officer to wait for the outcome of any Disciplinary Proceedings, which in turn also hampers his promotional prospects. Precisely, for these reasons, the Hon'ble Supreme Court in the case of Chamanlal Goyal and in the case of N.Radhakrishnan 1998 (4) SCC 154 had held that undue delay in finalizing Disciplinary Proceedings should not be allowed to happen; more so, when it affects the promotional prospects of employees. Applying the ration of those two judgments referred to above and in view of the fact that the Applicant's junior had already been given the benefit of consideration for promotion as per the direction in OA No.56/2006 dated 4.7.2003. We hold the view that the Applicant succeeds and the Original Application deserves to be allowed. Accordingly the respondents are directed to consider the case of the applicant for promotion to the post of Additional Principal Chief Conservator of Forests, which promotion if and when given will be subject to the outcome of the Disciplinary Proceedings. This exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. Original Application is allowed to the extent indicated above. No costs".
10.In the said circumstances, the first respondent filed another Original Application in O.A.No.850 of 2006 to quash the charge sheet dated 16.04.1998 issued by the first petitioner. His main ground of attack was the delay in keeping the disciplinary proceedings pending for eight years i.e. from the year 1998 to 2006 and the delay caused prejudice to him as he was forced to approach the Court of law twice seeking promotion. His complaint was that inspite of the aforesaid observation by the Tribunal based on the judgment of the Apex Court, the writ petitioners failed to finalise the disciplinary proceedings even after five years of his representation on the enquiry report.
11.The Tribunal allowed the O.A.No.850 of 2006 on 24.01.2008 mainly on the ground that the Department was not able to provide any convincing explanation for not finalizing the enquiry proceedings even after five years from the date of receipt of the representation of the first respondent on the enquiry report. The Tribunal further held that the inordinate delay in concluding the disciplinary proceedings inspite of its earlier order in O.A.No.540 of 2004 based on the judgment of the Apex Court reported in 1998 (4) SCC 154, pointing out the undue delay in finalizing disciplinary proceedings should not be allowed to happen. The Tribunal heavily relied on the decision of the Apex Court in P.V.Mahadean Vs. Tamil Nadu Housing Board reported in 2005(4) CTC 403 and also the judgments of this Court in M.Elangovan Vs. Trichy Dist. Central Cooperative Bank Ltd., reported in 2006 (2) CTC 635 and in Government of Tamil Nadu Vs. S.Ramasamy made in W.A.No.1111 of 2007 that the inordinate delay in not concluding the disciplinary proceedings would vitiate the entire proceedings.
12.The learned Special Government Pleader strenuously argued that the Tribunal erred in interfering with the charge sheet on the ground of delay in not finalizing the disciplinary proceedings. He further argued that from the year 2001 to 2006, i.e. for five years, the writ petitioners did not sleep over the matter and there were lot of deliberations took place within the Department on the disciplinary proceedings. He sought to explain away the delay in such a fashion. He argued that a further letter dated 21.11.2006 in continuation of its earlier letter dated 27.11.2000 was issued by the Disciplinary Authority, the first writ petitioner, to the first respondent seeking his view thereon. In the said letter, the first respondent was held to be responsible for the loss of Rs.9,88,780/- caused to the Government.
13.For the said purpose, he produced two files namely, Note File that contains page Nos. 1 to 219 and Current File that contains page Nos. 1 to 319 in C.No.2038/FR.Spl.A/2000 for our perusal.
14.While we perused the files circulated to us, we come to the conclusion that the order of the Tribunal has to be sustained on other reasons also, which are given below.
15.Based on the explanation dated 14.03.2001 submitted by the first respondent on the enquiry report, the file was put up for orders before the Disciplinary Authority i.e. the Secretary to Government, Environment and Forests Department.
16.The Secretary to Government, Environment and Forests Department has passed the following orders on 14.05.2001 which is found at page Nos.14 and 15 of the Note File:
In this case, serious irregularities, malpractices and misuse of funds, have been brought to light, whereas the charges framed against the AO do not indict him on specific instances of financial improprieties and irregularities. The charges are rather general in nature.
The availability of the materials purchased, the cost of the materials, the need for taking up certain civil works, proper extension of such works and financial implications item wise have not been dealt with by the Enquiry Officer. The enquiry report is superfluous and has not delved into each and every item of expenditure.
It may not be proper to proceed against the A.O. with this perfunctory report and inadequacies. Please examine whether specific addl. Charges against each item of lapse can be framed or whether the matter can be referred to DV & AC for a detailed enquiry before taking final decision. In this connection the decision of the Supreme Court in K.R.Deb Vs. Collector Central Exercise may be borne in mind.
17.It seems that there was a change of Secretary to the concerned Department. The new Secretary of the Department has passed the following order dated 13.12.2001 which is found at page No.18 of the Note File:
Why is this file put up to me now.
18.The Note File reveals that the Note File was put up for orders after discussion with the new Secretary.
19.The following order was passed on 13.08.2002 by the new Secretary which is found at page Nos. 21 and 22 of the Note File.
The issues raised by the Secy. earlier have not been answered in full as the current charges do not reflect the nature of the offence as no specific instance has been brought out clearly. Pl. examine whether any clear charges or possibility of fresh enquiry is possible. Discussed on 13/8. Inasmuch as there seems to be no possibility of fresh charge framing or reenquiry, a decision may have to be taken on available records only. May be submitted to my successor for orders.
20.There is a further order in the same page which is extracted here-under:
See Sectional notes. The main charge is of poor supervision as no malafide is established. This charge hasn't been established as evidence of its own but but has to be inferred because some VVK works didn't pass muster. Who was responsible for it has to be proved on its own and if a charge does not stand on its own legs it is difficult to uphold.
21.In the said circumstances, the Disciplinary Authority decided to drop the charges and accordingly, an order was passed on 04.12.2002 and the same is found from page Nos. 23 to 43 of the Note File. The Chief Secretary also endorsed the view of Disciplinary Authority on 05.12.2002. Further, it seems that the file was circulated to the Honourable Chief Minister of Tamil Nadu for his order. In this regard, the concluding paragraphs are extracted here-under:
VERNACULAR (TAMIL) PORTION DELETED
22.It seems that the file was put up before the Honourable Minister for Environment and Forests and the Honourable Minister passed the following orders on 03.02.2003 as found at page No.43 of the Note File.
VERNACULAR (TAMIL) PORTION DELETED i.e. according to the Honourable Minister for Environment and Forests, there was conflict between the report of the Enquiry Officer and the decision of the Disciplinary Authority. He therefore wanted the matter be referred to the Law Department for its opinion.
23.Accordingly, the opinion of the Law Department was obtained and the same is found at page Nos.53 and 54 of the Note File and the same is usefully extracted here-under:
3.In view of the above, it is open to the disciplinary authority to disagree with the findings of the Inquiry authority, by recording reasons therefor and to come to its own conclusion. In this case, E. & F. department has disagreed with the findings of the Inquiry authority, and recorded reasons therefore and it has come to its own conclusion, which is contradictory to the stand taken by Inquiry Authority. In view of the legal position set out above, there is no legal infirmity in the aforesaid action of the E. & F. Department.
24.In view of the opinion expressed by the Law Department, the Disciplinary Authority has passed a fresh order, which is found from page Nos. 57 to 79 of the Note File, incorporating the opinion of the Law Department and deciding to drop the charges. The said order was signed by the Secretary to the concerned Department on 19.06.2003 and also signed by the Chief Secretary on 20.06.2003. The said file was forwarded to the Honourable Chief Minister of Tamil Nadu for his orders.
25.Again, the Honourable Minister for Environment and Forests passed the following orders on 07.08.2003, which is found at page No.79 of the Note File:
VERNACULAR (TAMIL) PORTION DELETED
26.Therefore, the Honourable Minister had no quarrel for dropping the charges, but he wanted to ascertain who was responsible for the loss that was caused to the Government and from whom the loss amount has to be recovered.
27.Based on the aforesaid order of the Honourable Minister, the concerned Secretary to the Environment and Forest Department, directed the PCCF, the second writ petitioner herein, to submit a detail report about the persons from whom the loss amount of Rs.73,87,923/- would be recovered.
28.In this regard, the PCCF wrote a letter dated 11.03.2004 to the Secretary that recovery could be made from the Societies concerned as done in earlier occasions and the same is found at page No.82 of the Note File and the same is usefully extracted here-under:
VERNACULAR (TAMIL) PORTION DELETED
29.Thereafter, the Note File revealed that there were so many correspondences between the Secretary and the PCCF regarding the details of the Co-operative Societies from whom the recoveries have to be made and the quantum of amount from each of those Societies. The PCCF gave the list of Societies and the quantum of amount from those Societies.
30.While so, a note was made in Ref.No. 1/Secy.II/CMO/2005, dated 22.01.2005, from the office of the Honourable Chief Minister of Tamil Nadu, which is found at page No.165 of the Note File and the note was signed by the Secretary II to the Honourable Chief Minister. The entire note is extracted here-under:
NOTE Ref: E & F. C.No.2038/FR.Spl.A/2000 Kind attention is invited to the E & F Department reference cited.
Three charges have been framed against Thiru R.S.Barua, IFS., for the alleged irregularities not following the procedure while effecting purchases from the Societies, sanctioning payments to the Societies which had supplied sub-standard goods and executed sub-standard works and also for not maintaining the records relating to the works executed.
The Inquiry Authority has submitted his report stating that all the three charges are partly proved, whereas the Department has proposed to drop the charges without analysing all the three charges and the Inquiry Report carefully. This is evidence from the fact that the Hon'ble Minister for Forests and Environment has made certain observations at page No.43 of the note file and also again at page No.79 of the note file.
The contention of the Department that action has been initiated against the subordinate staff is not convincing to drop action against the delinquent officer. The Environment and Forests Department may examine in detail and analyse the records carefully and re-circulate the file to Hon'ble Chief Minister for necessary orders.
The file is returned herewith.
31.The said note is based on the non-application of mind to the entire facts. The note proceeds as if the decision to drop the charges against the first respondent was based on the initiation of action against the subordinate staff. The detailed facts mentioned above, would make it clear that the decision of the Disciplinary Authority to drop the charges against the first respondent was not on the ground that action was initiated against the subordinate staff on the issue involved.
32.Only after the said note from the office of the Honourable Chief Minister, the PCCF was again asked to submit his report after examining the case in detail. Based on the same, the PCCF submitted a report dated 22.06.2005 holding that the loss to the Government was only Rs.38,95,035/- and not Rs.73,87,923/-. It is stated by the PCCF that fifteen officials including the first respondent were responsible for the loss of Rs.38,95,035/- and that the first respondent is responsible for Rs.9,88,780/- only out of the said amount of Rs.38,95,035/-. The PCCF further stated that five officials among them had retired from service four years back and therefore, no action could be taken against them. The said order dated 22.06.2005 is found from page Nos.255 to 272 of the Current File. Further, from the Note File, we could see that the disciplinary action is not yet completed against the said subordinate staff involved in the alleged misconduct along with the first respondent though eleven years had elapsed.
33.The Secretary to the Environment and Forests Department directed the PCCF to explain as to how the first respondent would be held responsible for Rs.9,88,780/- when the Inquiry Authority held that he was not responsible for any loss.
34.The PCCF wrote a detailed letter dated 21.08.2006 to the first petitioner explaining how his conclusions are correct and how the conclusions of the Inquiry Authority was not correct. The same is found at page Nos.279 to 291 of the Current File.
35.The Disciplinary Authority issued an order dated 21.11.2006 to the first respondent holding that he was responsible for the loss to the tune of Rs.9,88,780/- and he was directed to furnish his further representation, if any, to the Government within 15 days from the date of receipt of the said order. This was in substitution to its earlier letter dated 27.11.2000. In the said letter dated 21.11.2006, there was nothing mentioned about the report of the PCCF dated 22.06.2005 and 21.08.2006. However, it is very clear from the said order dated 21.11.2006 that the first petitioner came to the conclusion that the first respondent was solely responsible for the loss of Rs.9,88,780/- based on the reports of PCCF referred to above and the reports of the PCCF were not furnished to the first respondent. Further more, the exercise made by the PCCF behind the back of the first respondent revising the enquiry report is not permissible and is in flagrant violations of principle of natural justice.
36.The learned Special Government Pleader relies on the letter dated 21.11.2006 and contended that the first respondent would submit his comments / reply thereon.
37.Further, the aforesaid deliberations within the Department for five years after the first respondent submitted his representation dated 14.03.2001 on the enquiry report is totally not justified and the Tribunal is correct in quashing the charge sheet holding that the delay of five years was not explained convincingly by the Department and the first respondent was seriously prejudice due to the delay in non-conclusion of the disciplinary proceedings as held by the Tribunal.
38.However, as stated above, the Disciplinary Authority acted based on the note of the office of the Honourable Chief Minister without applying its mind and called for fresh report examining the records behind the back of the first respondent to replace the enquiry report and therefore, the action of the Disciplinary Authority is arbitrary and violative of Article 14 of the Constitution.
39.Hence, while we uphold the reasoning of the Tribunal for quashing the charge sheet, we have given the additional reasons as stated above.
40.The writ petition is dismissed accordingly. No costs. Consequently, connected miscellaneous petition is closed.
TK To
1.The Secretary to Government Government of Tamil Nadu Environment and Forests Department Fort St.George, Chennai 600 009.
2.The Principal Chief Conservator of Forests Panagal Buildings, Chennai 600 015.
3.The Registrar Central Administrative Tribunal High Court Buildings, Chennai 600 104.
4.The Secretary Government of India Environment and Forests Department, New Delhi