N GAJARAJAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE writ petitions are directed against the proceedings of the second respondent dated 14. 3. 2006 under which the second respondent framed charges against the petitioners under Rule 17a of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

(2.) THE petitioners were initially appointed as Assistant Engineers through tamil Nadu public Service Commission on 29. 8. 1980 and 11. 2. 1998 respectively. Thereafter, the petitioner in W. P. No. 94 of 2008 was promoted as Assistant divisional Engineer on 4. 10. 1999 and posted at Krishnagiri and ultimately he was transferred and posted in Tamil Nadu Road Sector Project, Chennai-20 in the year 2005, in which the petitioner is working, while the petitioner in W. P. No. 95 of 2008 was subsequently transferred and posted in NABARD and Rural Road, kancheepuram Section as Assistant Engineer (H) in 2006 and he is working in the said capacity. 2 (a ). It is stated that while the petitioners were working at ponneri Assistant Engineer"s Office where the petitioner in W. P. No. 94 of 2008 was working as Assistant Divisional Engineer and the petitioner in W. P. No. 95 of 2008 was working as Assistant Engineer, emergency patch work was carried out in nerkundram-Seemavaram Road at the cost of Rs. 5 lakhs in K. M. 9/050-14/0. While the work was carried out during December, 2004, there was stated to be heavy rain. It is stated that after two years when checking was effected, a report was sent to the Government to the effect that there was no trace for having carried out the said patch work. It was based on the report of the Quality Control authority, the impugned charge memo came to be issued. 2 (b ). Two charges were framed to the effect that in respect of the above said work stated to have been carried out for an amount of Rs. 5 lakhs, it was found on inspection that no such work was done, however, an amount of Rs. 1,41,912/- was received on the basis that the said work was completed and therefore, the petitioners have not done their duty with dedication and honesty and thereby violated Rule 20 (1) of the tamil Nadu Government Servants Conduct Rules,1973. 2 (c ). Under the said impugned charge memo, the petitioners were directed to submit explanation within 15 days. The petitioners submitted their explanation to the second respondent stating that even as per the report of the Director of Highways Research Centre, it was not possible to check the measure after a long lapse of time and there was no finding that such work was not done. It is the case of the petitioners that after receiving the explanation, there was no enquiry conducted and no action taken till date. 2 (d ). In the meantime, the petitioner in W. P. No. 94 of 2008 was due for promotion as Divisional Engineer in the year 2006-07, while the petitioner in W. P. No. 95 of 2008 was due for promotion for the post of Assistant divisional Engineer in the year 2006-07 and their names were not considered because of the charges pending against them. It is stated that their juniors were considered for promotion and they were also promoted to the above said posts with effect from 29. 3. 2007. 2 (e ). It is stated that the second respondent has preferred a panel for the year 2007-08 for the post of Divisional Engineer and Assistant Divisional Engineer and in the panel also, the petitioners names were not included and their juniors were included and the reason assigned therefor is the pendency of disciplinary proceedings. It is the case of the petitioners that as per Rule 39 (d) of the Tamil Nadu State and Subordinate service Rules, even the pendency of departmental or criminal proceedings is not a bar for considering the promotion temporarily and even regular promotion can be made. 2 (f ). According to the petitioners, they are entitled to be considered for promotion for Divisional Engineer and Assistant Divisional Engineer respectively and in these circumstances, the writ petitions came to be filed on the ground that the charge memo is illegal, opposed to the principles of natural justice and arbitrary. 2 (g ). According to the petitioners, under Rule 9a of the tamil Nadu Civil Services (Discipline and Appeal) Rules, in cases where more than one Government Servant are involved in a disciplinary proceeding belonging to the same department, the authority who is competent to initiate disciplinary proceedings and impose penalty is specified and under rule 8, the authority to take disciplinary proceedings in both the cases shall be one who is entitled to take disciplinary proceedings in respect of the Government servant who is holding the highest post and the disciplinary proceedings against all of them shall be taken together. In the present case, according to the petitioners, one is working as Assistant Divisional Engineer and the other is the Assistant engineer and the competent authority is the Government and therefore, the proceedings by the second respondent is against Rule 9a. 2 (h ). That apart, it is also the case of the petitioners that there are no witnesses to prove the charge against the petitioners and therefore, no charge can be framed under Rule 17 (b), that the instructions to do the patch work were given in December, 2004 and the Director of Highways Research Centre conducted the inspection nearly after 1= years of completion of the work, that by virtue of the disciplinary proceedings the chance of petitioners being considered for the next promotion is obstructed and that the case on hand is covered by various orders of this Court, as referred to in the affidavit.

(3.) IN the counter affidavit filed on behalf of the respondents, while it is admitted that the charges were framed against the petitioners under Rule 17 (b)of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, on the basis of illegal loss that was caused to the Government to the extent of Rs. 1,41,912/- in carrying out patch work and it was due to the pendency of disciplinary proceedings, the petitioners" names were not considered for panel for promotion for the years 2006-07, 2007-08 and 2008-09. 3 (a ). It is stated that the urgent repair work to improve Nerkundram-Seemavaram KM5/7 14/0 was sanctioned at the estimated cost of Rs. 40 lakhs apart from the repairing flood damages on nerkundram-Semavaram KM9/050 - 14/0 at the estimated cost of Rs. 5 lakhs in ponneri Highways Sub Division during 2004-2005. In March, 2006 when the Director of Highways Research Station made inspection and filed a report on 11. 3. 2006, he furnished remarks about the above said works as follows: " Since the improvements work has been completed in the reach 5/7 8/2 the urgent repair works are not measurable. In other reaches works under improvements are commenced and progressing, the quantum of work as per the urgent repairs estimate in this reach could not be verified and properly assessable at this stage. From Km. 8/2-13/0 other than the above said WBM laid portions there are no traces of BT patches laid. The road is damaged due to potholes, revelling. Moreover, in most of the reaches the average road width is about 5. 5mts. to 6. 5mts. and specifically in the last reach of 11/0 to 13/0 the width of the road is about 4. 5 to 5. 0 mts. All the urgent repair estimates are prepared using PC without seal coat. Further one of the agreement conditions under Commercial condition 4. 1 states that the contractor shall be responsible to make good and remedy at his own cost, any defect which may develop before the expiry period of 36 months (defect liability period) from the completion of whole work. But within a period of 4 to 6 months of completion of urgent repair work, improvements or strengthening estimate for the same reaches are prepared, sanctioned and entrusted and started by picking the patches provided in the urgent estimate which is contrary to the above tender condition. The Chief engineer (General) (Highways) has stated in his inspection notes, dated 24. 05. 2005 that he has observed the defects that there are no traces of PC patches done on these roads. Subsequently, on 10. 11. 2005 the Superintending engineering (H) Chennai has reported that all the defects were rectified. He has stated that he had inspected all the roads and found no such acts of omission. But the date of inspection is not mentioned. Further as seen from the above that the patchwork under urgent repair work was picked from August'05 onwards. Hence the report of the Superintending Engineer (H) Chennai is contrary. No inspection notes of the Superintending Engineer (H) Chennai is available for having verified the defects. Further action may please be taken in this regard. " 3 (b ). It was based on the said report, the second respondent has issued the memo. It is stated that the petitioners have submitted their explanation on 25. 9. 2006, after five months from the date of the charge memo which was served on 17. 3. 2006. It is stated that apart from the petitioners, charges were framed against other two persons and ultimately, an Enquiry Officer was appointed on 2. 11. 2007 and the Enquiry Officer conducted the enquiry and submitted a report on 5. 3. 2008. 3 (c ). In the meantime, by virtue of interim stay order granted by this Court dated 15. 2. 2008, which was stated to have been received by the first respondent on 5. 3. 2008, further proceedings were stopped. After the expiry of the period of stay granted for four weeks which as not subsequently extended, the Government examined the Enquiry Officer"s report and having decided that the charges against the petitioners are proved, the defence statement was called for from the petitioners by letter dated 24. 4. 2009 and the petitioners also submitted their reply on 18. 6. 2009. 3 (d ). The factum of pendency of disciplinary proceedings and non-consideration of the petitioners for promotion for the year 2006-07, 2007-08 and 2008-09 was intimated to the petitioners on 27. 9. 2007. Rule 39 (d) of the Tamil Nadu State and Subordinate Service Rules relates to the promotion given on emergency basis pending preparation of panel and that is not the situation in the present case. 3 (e ). In respect of the contention of the petitioners regarding Rule 9a of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, it is stated that the said rule applies only in cases where charges are framed under the Tamil Nadu Civil Services (Discipline and Appeal) Rules, but in the present case, charges have been framed against two higher officials viz. , Divisional Engineers (now Superintending Engineers retired) by the first respondent and those charges were framed under the Tamil nadu Pension Rules since they have retired and therefore, the charges are not under the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Therefore, according to the respondents, the provisions of Rule 9a of the Tamil Nadu Civil services (Discipline and Appeal) Rules are not applicable to the case of retired officers. 3 (f ). It is stated that the second respondent has exercised his powers vested with him as Head of the Department in Rule 12 (2) (ii) of the Tamil nadu Civil Services (Discipline and Appeal) Rules and issued charge memo on 14. 3. 2006 under Rule 17 (b ). Therefore, it is the case of the respondents that in respect of these two petitioners though charges were framed under Rule 17 (b), in respect of the two higher officers viz. , Superintending Engineers, since they retired from service after holding higher posts, the charges were reframed under rule 9 (2) of the Tamil Nadu Pension Rules and therefore, Rule 9a of the Tamil nadu Civil Services (Discipline and Appeal) Rules are not applicable. 3 (g ). It is also stated that there are abundant materials to show that sub-standard materials have been used for patching working and the same is revealed by the director of Highways Research Centre in his report which has been enclosed along with the charge memo. It is stated that the enquiry has been conducted and it is, because of the pendency of the writ petitions, no orders have been passed in the enquiry.