GUNASEKARAN Vs. TAMIL NADU STATE HOUSING BOARD

JUDGEMENT

(1.) PETITIONERS are legal representatives of one S. Gunasekaran, who joined Government Service as a Junior Engineer and was working under the first respondent. He filed the writ petition to quash the order of the first respondent dated 5th March, 1981 directing the period of his suspension from 5th July, 1974 to 3rd January, 1978 to be treated as leave to which petitioner would be eligible. He dies during the pendency of the writ petition and his legal representatives have been brought on record.

(2.) IN the affidavit filed in support of the writ petition, he had stated as follows. In 1974 he was in charge of supervising the work providing laterite soling of the 60' road east of the Pallavan Transport Depot at Vyasarpadi. On a suspicion that he had committed certain irregularities he was placed under suspension by order, dated 10th June, 1974 with effect from 5th June, 1974. An enquiry was conducted on a charge of illegal gratification alleged to have been received by him from a contractor by name L. Kishtappa Chetty, and ultimately, the Chief Engineer had stated that the conclusion arrived at by the Divisional Engineer was not a sound one based on his report. By resolution, No. 83 dated 11th April, 1978, the Board resolved that he charges be dropped and the period of suspension to be treated as one of duty. Without giving any opportunity to petitioner, it resiled from the said resolution and passed Resolution No. 320 to treat the period of suspension as on leave. The said penalty having been imposed under F. R. 54, he preferred an appeal to the second respondent, and on it being rejected, he preferred the writ petition claiming that, once a charge is dropped, it tantamounts to a total exoneration, and hence F. R. 54 (2) cannot be invoked. Once first respondent took a quasi-judicial decision as per R. No. 53, thereafter it had no jurisdiction to reivew the said decision and pass R. No. 320. Chief Engineer on both the occasions having cleared him, it was at the behest of the Government alone, this adverse order had been passed and it had no jurisdiction to issue such directives to the first respondent, particularly, when the disciplinary proceedings are dropped.

(3.) ON behalf of first respondent, in the elaborate counter-affidavit filed, it is stated as follows : Gunasekaran was the Assistant Engineer put in charge of the work for providing laterite soling to the balance width of 29' on 60' road east of Pallavan Transport Depot at Vyasarpadi. On 7th June, 1974, a report was received from Vigilance stating that he had been arrested on 5th June, 1974 for his alleged recording of false cash receipt and preparing a bill for Rs. 8,948 in favour of Contractor L. Kishtappa Chetty and for acceptance of Rs. 3,000 from the Contractor after the bill was encashed. Based on this report, he was placed under suspension with effect from 5th June, 1974. The Vigilance report was sent by Government in August, 1975 and he was prosecuted. As Kistappa Chetty, who had turned as an approver died on 21st September, 1975, the Vigilance informed the Board that he said witness having died, this is a fit case for conducting departmental enquiry. Hence, a charge memo dated 19th April, 1976 was issued to him stating that he had recorded false measures and prepared a bill for Rs. 8,948/- in July, 1973 in favour of Kishtappa Chetty and accepted a bribe of Rs. 3,000 from him. He submitted his explanation and the Enquiry Officer submitted his report. The Divisional Engineer certified that the work carried out was of substandard quality. The Chief Engineer, who was apprised with the Enquiry Report, came to the conclusion that the Divisional Engineer's opinion was not conclusive and that he had not established that the work was sub-standard. He also held that the bills paid at intervals did not lend credence to the allegations that payment was made without making supply. The records of enquiry along with Chief Engineer's (Technical) opinion were placed before the Board, and it called for more comprehensive note to be submitted and thereafter, a comprehensive note was put up by him stating that the Measurement book does not give room for the impression that there was any fraudulent practice. As for approver's statement, he found that it had not been corroborated independently. Regarding evidence of Divisional Engineer, it was held to be not conclusive, and it is not established that the compaction consolidation was only 10%, and the bills paid at intervals do not lend credence to the allegation that he payment was made without receiving full supply. Hence, Board passed a resolution in R. No. 83 on 27th January, 1978 resolving to drop the charge and to treat the period of suspension as one of duty. Pending issue of orders, Government was apprised of the position, and as desired by the Government, de novo the Board again looked into the matter and then it dropped the charges, but yet it came to the conclusion in R. No. 320 dated 22nd April, 1978 that the suspension period be treated as leave to which the petitioner is eligible as he had not been fully exonerated of the charges framed against him. As against the decision being communicated to the petitioner on 24th June, 1978, he preferred an appeal to the Government on 25th July, 1978. Government felt that a show cause notice should have been issued to the petitioner as to why such a punishment should not be awarded. Thereafter, petitioner on being informed to submit his explanation, and as the suspension was not wholly unjustified, as he had faced a departmental enquiry, the impugned order was passed.