This writ petition is filed by the petitioner to call for the records in letter No.2299/ECII/2003-1, dated 10.3.2003 of the first respondent confirming G.O.No.158, dated 12.8.2002 issued by the first respondent and quash the same.
2. The petitioner, while serving as an Additional Director (Administration) of Tamil Nadu Pollution Control Board, was served with a memo dated 13.7.2000 stating that the Board proposed to enquire into the misconduct, misbehaviour of the petitioner. To the said memo, the petitioner has submitted an explanation on 18.7.2000 and an oral enquiry was conducted on 27.7.2000. At this point of time, the Government passed a G.O. (3D) No.35, dated 31.7.2000 permitting the petitioner to retire from service on attaining the age of super annuation in the A.N. of 31.7.2000 without prejudice to the disciplinary proceedings pending against him.
3. The said Government Order was challenged in W.P.No.13260 of 2000 and by an order dated 4.8.2000, this Court directed the Government, the first respondent herein to frame charges in the disciplinary proceedings and hold an enquiry giving fair and reasonable opportunities to the petitioner and conclude the proceedings expeditiously. After retirement, on 1.2.2001, the Government issued a charge memo with annexures 1 to 4 under Rule 8 (2) of the Tamil Nadu Pollution Control Board (Disciplinary and Appeal) Regulations 1988 read with Rule 9 of the Tamil Nadu Pension Rules 1978. Annexure-I is the statement of the substance of allegations for charges 2 and 3, which reads as follows:-
" CHARGE-II:-
That the said officer during the period of 1996 has called for, open tenders for the purchase of voice mail, and 8 companies submitted quotations. M/s. Antaides had quoted the rates for specification not found in the tender schedule. But a letter dated 3.4.97 was sent to this firm to furnish single and two channel system and the letter was sent to the firm without approval of Member-Secretary, which is highly irregular. Thus he violated rule 20 of Tamil Nadu Government Servants Conduct Rule 1973.
CHARGE-III That the said officer during the period of 1996 had purchased water testing kits for N.G.O.Cell on 27.3.96 and 2.4.96. The date of expiry of each kit is September 1996 and after that it cannot be used for any purpose. But they were not used. It is a total waste and loss to the tune of Rs.1.00 lakh. This clearly shows that he has not evinced interest in distribution of watertesting kits to N.G.Os. for usage and thereby lacks devotion to duties, violated Rule 20 of Tamil Nadu Government Servants Conduct Rules 1973."
Annxure -II contains Charges II and III and the same is extracted below:-
" Charge-II.
Thiru M. Rafi allowed a particular company M/s. Antaides to quoto rates for specifications not found in the tender schedule and hence tried to favour them. In his own accord invited rates from M/s. Antai des for a single and two channel system and this letter was sent to the firm without the approval of the member Secretary. He invited quotation from M/s. Elcot alongwith M/s. Antai des and in this case also there is motive. Thus he had violated rule 20 of Tamil Nadu Government Servants Conduct Rule 1973.
CHARGE III:
He has failed to distribute the kits purchased prior to the date of expiry i.e. September 1996 resulting in a loss of Rs.1.00 lakh to the Board. Thereby, he lacks devotion to duties and violated Rule 20 of Tamil Nadu Government Servants Conduct Rule 1973."
Annexure-III is the list of documents and Annexure IV is the list of witnesses. Charge No.II is of no relevance for the present adjudication as the petitioner has been found not guilty.
4. The writ petitioner submitted his explanation to the charges, an enquiry was conducted and the enquiry officer submitted his report on 24.4.2001. As stated earlier, charge No.1 was not proved. As regards the charge No.2 is concerned, the enquiry officer, based on oral and documentary evidence, found that the writ petitioner has not properly explained the charges levelled against him and therefore, the violation of the procedure and the Rules was proved. As regards the charge No.3 is concerned, the enquiry officer found that the petitioner did not supervise the utilisation of funds resulting in loss to the Board to an extent of Rs.1,00,000/- and held that the charge No.3 was proved.
5. In reply to the enquiry officer's report and the findings, a detailed explanation was submitted by the writ petitioner on 9.5.2001 refuting the finding of the enquiry officer both on facts and on law. Based on the enquiry officer's report, the first respondent issued a show cause notice to the writ petitioner vide letter No.25304/ka.2/2000-22, dated 17.5.2002, proposing to deduct a sum of Rs.50/- from the pension for three months and 5% of Rs.1,00,000/- from and out of the gratuity amount payable, which is the loss suffered by the Board due to the negligence of the petitioner in his supervision. To this, a detailed explanation was submitted by the petitioner on 21.6.2002 to the Secretary to the Government stating that he is innocent and he has not committed any irregularity or misconduct in discharging his duty. In the said letter, he referred to his explanation dated 9.5.2001. Further a letter signed by the petitioner and the Advocate dated 21.6.2002 has also been submitted for consideration.
6. In his letter/explanation dated 21.6.2002, he submitted that he is totally innocent. However, from the tenor of the letter/explanation, it is evident that he denied the allegations stating that the enquiry report is totally biased and does not consider the explanation submitted by him. Inspite of his innocence, he suffered severe mental agony for more than four years and four months on account of withholding of the terminal benefits. He pleads that if the Government finds that his explanation as not satisfactory and his innocence was not accepted, he has no other choice except to accept the proposals and suffer the mental agony throughout his life for being a victim of such injustice. In effect, he pleaded for the release of the terminal benefits as he was in dire need of money. The last paragraph of the letter/explanation clearly explains the distressed mental condition of the writ petitioner suffering financial crisis due to denial of terminal benefits. However, on a reading of the letter/explanation in its entirety it is clear that the petitioner did not accept the guilt. On the contrary, he refuted both the charge Nos. 2 and 3 emphatically and the same is supported by the detailed explanation/letter dated 9.5.2001.
7. The Government instead of considering the entire case of the petitioner with regard to the charge, explanation given by the petitioner and the finding of the enquiry officer, merely on the basis of the last portion of the letter/explanation dated 21.6.2002, came to the conclusion that the writ petitioner has accepted to pay the penalty proposed and accordingly passed the proceedings in G.O.Ms.No.158, Environment and Forest (C.2) Department, dated 12.8.2002 confirming the penalty proposed. A review was filed on 26.1.2003 and rejected on 10.3.2003 resulting in the present writ petition.
8. Heard Mr. Vijay Narayan, learned Senior Counsel appearing for the petitioner, who submitted that the order of the Government imposing penalty is without application of mind and the merits of the case of the petitioner has not been discussed. It is a non speaking order without reasons. The order of penalty is bereft of reasons and based merely on a misconception of the letter/explanation dated 21.6.2002 and therefore, it is bad. He further argued that (i) The charge No.3 relates to the period in 1996 and the charge memo was issued on 1.2.2001. In any event, the charge memo is in contravention of Section 9(2)(b) of The Tamil Nadu Pension Rules, 1978, which reads as follows:-
" 9(2)(a) The departmental proceeding referred to in Sub Rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government Servant be deemed to be proceedings under this Rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the Government, that authority shall submit a report recording its findings to the Government.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,-
(i)shall not be instituted save with the sanction of the Government;
(ii) shall not be in respect of any event which took place more than four years before such institution; and
(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service."
In this case, the charge memo is hit by the above said provision of law as the incident alleged is stale.
9. As far as charge No.2 is concerned, the finding of the enquiry officer is contrary to the charge. The charge is based on letter dated 3.4.1997 in which, the allegation is that the writ petitioner favoured one company whereas the finding of the enquiry officer is based on the approval of the Member Secretary, dated 21.3.1996. Further, the finding of the enquiry officer is based on oral evidence of the witnesses, who were summoned at the time of enquiry without proper intimation to the writ petitioner and their names does not find place in the annexure-4. Therefore, there is a gross violation of Principles of Natural Justice.
10. He further submitted that insofar as the charge No.2 is concerned, the proposal to procure the material itself was dropped. This has not been considered by the authority. The enquiry officer and the Government have not considered the explanation given for the non utilisation of the material before the dead line and simply fixed the responsibility on the writ petitioner. He, therefore, submitted that both on facts as well as on law, the charge memo and the finding of the enquiry officer is based on no material and is perverse. He also submitted that the Government, while considering the explanation submitted by the writ petitioner, failed to take into account the detailed explanation and has been mislead by the last portion of the letter/explanation dated 21.6.2001 stating that he has accepted to pay the penalty. He therefore, pleaded for quashing the impugned order.
11. Heard Mr. Ramanlaal, learned counsel appearing for the Pollution Control Board. He has stated that as far as the Board is concerned, the charges proposed by the Board were not proceeded further and the writ petitioner retired from the Board and consequent to the order of this Court, charges were framed by the Government.
12. Heard Mr. S.M.Kirubanandam, learned counsel appearing for the first respondent, who reiterated the stand of the Department and stated that in view of the letter/explanation dated 21.6.2002 submitted by the writ petitioner, where he has agreed to pay the penalty proposed, no relief can be granted in the present writ petition.
13. The letter/explanation dated 21.6.2002 has been totally misconceived by the Government. There is no acceptance of guilt outright as stated by the Government in the impugned Order. All that is stated by the petitioner is that the petitioner is totally innocent and that the enquiry report is based on gross mistake of facts and misreading of the documents. The petitioner has given an explanation that the enquiry Officer has wrongly come to the conclusion of guilt on the basis of the letter of the year 1996 which is not relevant to the charge and stated that whatever has been done is based on the instructions of the member secretary. The detailed explanation submitted on 9.5.2001 will form part of the letter/explanation dated 21.6.2002 and that has not been properly considered. There is no discussion with regard to the explanation given. There is total non application of mind to the explanation submitted. All aspect of the enquiry officer's report and findings have been refuted by the petitioner in his letter/explanation dated 9.5.2001 and the other letters, which have been referred to in the representation dated 21.6.2002 and that has not been considered by the Government at all. Hence, the impugned order is bad.
14. Further, with regard to charge No.3, specific reference has been made to documents viz., annexures 14 and 17. These documents have not been considered by the Government. In this case, it is relevant to note that the charge No.1 has been dropped. Therefore, it becomes necessary that while considering the case of the petitioner with regard to charge Nos. 2 and 3, the Government ought to have considered the explanation of the writ petitioner dated 9.5.2001 along with letter/explanation dated 21.6.2002. On the contrary, what has been referred to by the Government is the letter/explanation dated 21.6.2002 and that too, the last portion of the said letter/explanation where the petitioner has pleaded in desperation that he will give up the terminal benefits if the Government is not willing to accept the plea of his innocence. The Government, while dealing with the delinquent officer has to go into merits of the explanation given by the petitioner against the enquiry officer's report. It cannot simply impose the penalty as proposed and that too by an order bereft of reasons.
15. On going through the Government Order, it is seen that the Government has referred to the charge memo, report of the enquiry officer, the findings and the explanation of the delinquent officer, and thought it appropriate to impose the penalty as the writ petitioner has accepted to pay the penalty. The Government has not applied its mind to the explanation given by the writ petitioner on 9.5.2001 on the merits of the charges and the findings given by the enquiry officer. Further, in the explanation dated 9.5.2001, a specific plea with regard to violation of Principles of Natural Justice has been raised and that has not been considered by the Government. The Government, while considering the case of the disciplinary proceedings of the officer of the Board, should have taken into consideration both legal and factual plea that has been raised by him. In this case, there is total non application of mind to all aspects of the case except relying upon the last portion of the letter/explanation dated 21.6.2002. For this reason alone, the Government Order, bereft of reasons, and passed without application of mind is liable to be set aside. There is total non consideration of materials relevant to the case.
16. As far as the charge No.3 is concerned, the learned senior counsel brought to the attention of this Court, the decision of the Apex Court reported in STATE OF U.P. AND ANOTHER Vs. - SHRI KRISHNA PANDEY [1996), 9, SCC 395] and stated that the charge No.3 relates to certain misconduct in September 1996 and the charge memo in this case was issued on 1.2.2001. Therefore, in terms of Section 9(2)(b) of the Tamil Nadu Pension Rules, the charge memo has to fail. He stated that this plea now raised before this Court, a legal plea, should be considered by the Government if this Court is inclined to set aside the order by way of remand for re-consideration of the case of the petitioner on merits.
17. In this case, petitioner has established that there is total non consideration of relevant materials like the charge levelled, the explanation given and to the findings of the enquiry officer. There is no discussion on the merits of the charge and the explanations given. The facts in dispute have not been analysed. Hence, the impugned order passed based on a misconception of petitioner's letter dated 21.6.2002 deserves to be set aside. In other words, the order is a non speaking order and one without reasons.
18. In view of the above, the writ petition is allowed. The order under challenge is set aside and the matter is remitted back to the Government for re-consideration on all aspects including the legal plea raised by the writ petitioner before this Court. The petitioner will be given an opportunity to make his submissions before the Government within a period of four weeks from the date of receipt of a copy of this order and the Government shall complete its proceedings within a period of six weeks thereafter. Consequently, WMP No. 26274 of 2003 is closed. No costs.
ra To
1. The Secretary, Environment and Forest (EC.II) Department, Government of Tamil Nadu, Fort St. George, Chennai.9.
2. The Chairperson, Tamil Nadu Pollution Control Board, No.100, Anna Salai, Guindy, Chennai 32