Challenging the order passed by the second respondent in G.O.D.No.78 PUBLIC WORKS (E1) DEPARTMENT dated 04.03.1999 and G.O.(D) No.228 PUBLIC WORKS (F2) DEPARTMENT dated 17.05.2002, the petitioner has filed the present writ petition.
2. The case of the petitioner as seen from the affidavit runs as under:
(i) The petitioner, an Engineering Graduate, entered the service of the Public Works Department as Technical Assistant on 12.06.1971 and by dint of hard work and seniority, he was promoted as Assistant Engineer on 15.06.1987, and subsequently as Assistant Executive Engineer on 19.11.2001.
(ii) While the petitioner was serving as Assistant Engineer in Madurai North Sub-Division, Madurai during the year 1992-93, one Krishnaswamy was serving as Assistant Executive Engineer and one Ramaswamy was serving as Assistant Engineer. During that period, special repairs for certain portions of buildings at Madurai, namely, Government Rajaji Hospital, Law College, Executive Engineer's Quarters and CTO Office and removal of damaged and broken 'spartek' tiles and replacing them with new 'spartek' tiles have been taken up for execution. While fixing the value for laying of the tiles, 3 quotations were obtained, in which, the quotation submitted by one Krishnaswamy Nadar was for Rs.61.50. According to the petitioner, he and yet another Assistant Engineer, Ramaswamy verified the estimates and obtained counter signature from the Assistant Executive Engineer and submitted the same to the Executive Engineer, one Thirumalai Kumaraswamy for approval and orders for execution.
(iii) It is further stated that the Executive Engineer, P.W.D. is vested with powers to call for quotations and to decide the rates and as a Divisional Engineer, he alone is the competent authority to approve the rates and once the rates are approved by the Executive Engineer, either the Assistant Executive Engineer or the Assistant Engineer, who executes the work have no powers to modify the rates. The petitioner has further stated that he has adopted the rates which were already approved by the Executive Engineer and adopted by some other Executive Engineer of other Divisions and that the estimate prepared by him has already been approved by the Executive Engineer for some other works earlier and the same value has been adopted and submitted to the Executive Engineer for approval.
(iv) An allegation was made against the petitioner, the Assistant Executive Engineer, Krishnaswamy and the Assistant Engineer, Ramaswamy that they have violated
Article 3(1)(b) of T.N.Financial Code Volume 1, stating that they have deliberately failed to verify the bonafideness of the rates furnished for supply of 'spartek' tiles and submitted the same with higher rates which resulted in pecuniary loss to the Government to the tune of Rs.23,310/- and the same has been made with an intention of personal gain. The said issue was taken up after a lapse of 5 years and a charge memo, dated 28.02.1997 containing three charges was issued to the petitioner under Rule 17(b) of the T.N.C.S. (D & A) Rules.
(v) The petitioner submitted a detailed explanation to the said charge memo, denying the charges on the ground that the estimate prepared by him is not a fresh one and the estimates submitted have already been approved by the Executive Engineer in respect of earlier works in the year 1992-93 and the work has been executed in a number of divisions. He also denied the charge that he failed to verify the bonafideness of the rates for supply of 'spartek' tiles.
(vi) It is further stated that before the enquiry officer, Thiru.K.Ravikumar, Superintending Engineer, Project Circle, Palayamkottai, who was appointed to conduct a common enquiry against the petitioner and others, number of documents have been filed to prove that the petitioner and others are innocent. The enquiry officer in his report has held that all the charges have not been proved against him and submitted an unproved minute to the disciplinary authority. But, the Government has decided to deviate from the findings of the enquiry officer and held that the charges have been proved against the petitioner.
(vii) The Government issued a dissenting minute in Letter No.11764/E1/95/24 dated 29.05.1998 and issued a show cause notice, disagreeing with the views of the enquiry officer's report and directed the petitioner to submit a reply for the deviated findings. The petitioner submitted a detailed further representation on 03.06.1998. Thereafter, the Government has held that Charge Nos.1 and 2 are partly proved and accepted the findings of the enquiry officer in respect of charge no.3 and dropped action. For the proven charge Nos.1 and 2, the Government imposed punishment of stoppage of increment without cumulative effect for a period of 6 months by an order in G.O.D.No.78 PWD D1 Department, dated 04.03.1999. The Assistant Executive Engineer, Krishnaswamy was also imposed with the similar punishment.
(viii) The petitioner preferred a review to the Government and the Government after obtaining opinion from Tamil Nadu Public Service Commission, rejected the Review Petition in G.O.(D) No.228 PWD F2 Department dated 17.05.2002. The petitioner was also communicated with a copy of the report of TNPSC. According to the petitioner, the punishment imposed by the 2nd respondent is unjust, illegal, irregular and unsustainable in law. It is his case that the estimate was not prepared by him individually and it was prepared following the earlier estimate and approved by the Department. According to the petitioner, merely because, a contractor who was not given the work has chosen to give a statement that he purchased 'spartek' tiles @ Rs.23.50 from a shop cannot be a ground to hold that he has failed to verify the correctness of the estimates submitted and when the estimate has already been approved by the Executive Engineer and the work has been executed, there is no harm in following the same estimate for the subsequent works; moreover, the petitioner is not the deciding authority for approving the estimates and it is only the Executive Engineer, who is the deciding authority and particularly, in this case, one Thirumalai Kumaraswamy, Executive Engineer has approved the estimate earlier and awarded works to number of persons which has been followed subsequently.
(ix) The petitioner has further submitted that in respect of the Assistant Executive Engineer, Tr.Krishnaswamy, he has challenged the punishment imposed on him before the Tamil Nadu Administrative Tribunal in O.A.No.5403 of 2002 and the Tribunal by an order dated 23.05.2002 was pleased to set aside the punishment and the Government has also accepted the setting aside of the punishment and regulated the period of suspension. The petitioner, being a similarly situated person, claims that he is entitled to the same relief and having no other alternative has approached this court for the said relief.
3. The respondents have filed counter affidavit and have stated that during the period 1992-93, special repairs to certain portions of the buildings at Madurai were taken up for execution, including removal of the damaged Spartek tiles and replacing them with new Spartek tiles and it was reported that the Spartek tiles were purchased at exorbitant rates and replaced, after demolishing the mosaic floor to gain illegal pecuniary advantage. Subsequently, an appropriate investigation authority of the Government had conducted investigation into certain allegations and lapses against the petitioner and Thiru M.Ramaswamy, Assistant Engineer, Thiru N.Krishnaswamy, Assistant Executive Engineer and one Thiru S.Thirumalaikumaraswamy, Executive Engineer, the co-accused involved in this case and held the allegations as substantiated against them. The investigation authority also recommended for the initiation of departmental disciplinary proceedings against them, besides recovering the loss sustained by the Government to a tune of Rs.67,937/-. Based on the directions of the Government, the Chief Engineer (General) P.W.D. had framed charges against the petitioner and other co-accused vide Charge Memos dated 28.02.1997 under Rule 17(b) of the TNCS (D & A) Rules.
3a. As per the data attached to the estimate, three quotations were obtained, in which it is found that one V.A.Kanda Nadar and sons quoted Rs.61.50 per sq. ft.; M/s.Jayam and Company quoted Rs.67/- per sq. ft and M/s.TALC Annamalai Nadar and Co. quoted Rs.72/- per sq. ft., in which the lowest quotation was that of V.A.Kanda Nadar and Co. and the same was adopted in the estimate and not that of Krishnaswamy Nadar, as stated by the petitioner.
3b. Regarding the averment that the estimates prepared by the petitioner by adopting the same value from the estimates already approved by the Executive Engineer, the respondents have stated that the petitioner had prepared the estimate based only on the quotation approved by the Executive Engineer and that the rate quoted and adopted by the petitioner was higher than the prevailing market rate which was only Rs.19/- to Rs.26.50/- per sq. ft. According to the respondents, it is unbelievable that the petitioner and the Assistant Executive Engineer were not aware of these rates and they have blindly adopted the rates approved by the Executive Engineer. The respondents have contended that the petitioner in collusion with the Assistant Executive Engineer and the Executive Engineer had committed the fraud and caused loss to the Government.
3c. The respondents have further stated that the petitioner has caused loss to the Government to a tune of Rs.23,310/- in the purchase of Spartek Tiles and has violated the codal provisions. According to the respondents, the Government has held that Charge Nos.1 and 2 are partially proved, since the rates were prima face exorbitant when compared to the market rates. In respect of Charge No.3, the Government has held that it is partially proved since the petitioner had failed to maintain absolute integrity and devotion to duty and thereby violated the Government Servants Conduct Rules. It is the contention of the respondents that in such cases, recovery should have been ordered, but the Government has taken a lenient view by awarding the punishment of stoppage of increment for six months without cumulative effect vide G.O.D.No.78 PW (E1) Department, dated 04.03.1999. As such, the respondents submitted that only after examination of all records, the Government has passed final orders on the disciplinary proceedings against the petitioner.
4. Heard Mr.K.Venkataramani, learned Senior Counsel for the petitioner and Mr.N.Senthil Kumar, learned Additional Government Pleader for the respondents.
5. Learned Senior Counsel for the petitioner has submitted that the petitioner in the capacity of an Assistant Engineer is not competent to decide the rates and once the Executive Engineer decides the rates, then the petitioner has to follow the same. He further submitted that regarding the allegation of misclassification of work, the estimate was prepared after inspection and it was signed by the concerned authority and there is no violation of Financial Code Vol. I. He also raised a question that as to why the petitioner alone is singled out and inflicted with punishment, when the other officials termed as co-accused have been exonerated. According to the learned counsel, the impugned order does not contain any valid and acceptable reasons for deviating from the view of the enquiry officer and hence, it has to be quashed.
6. Per contra, learned Additional Government Pleader for the respondents would contend that the rate quoted and adopted by the petitioner was higher than the prevailing market rate which was only between Rs.19.00 and Rs.26.50 per sq. ft and that the petitioner in collusion with the Assistant Executive Engineer and the Executive Engineer had committed fraud and caused loss to the Government to the tune of Rs.23,310/- in the purchase of Spartek tiles and had violated the codal provisions. According to the learned Additional Government Pleader, the estimates, agreements and measurements prepared and recorded by the said officers were false and they have done so with an intention to cheat the Government to attain personal gain and hence, pleaded for dismissal of the writ petition.
7. I have given heedful consideration to the submissions of the learned counsel on either side and perused the relevant provisions and the material documents on record.
8. A panoramic view of the case would reveal that during the year 1992-93, special repairs for certain portions of buildings at Madurai, namely, Government Rajaji Hospital, Law College, Executive Engineer's Quarters and CTO Office were taken up for execution by the Public Works Department and the said work included removal of damaged and broken 'spartek' tiles and replacement of the same with new 'spartek' tiles. While fixing the value for laying of the tiles, three quotations were obtained, in which the quotation submitted by one Krishnaswamy Nadar was for Rs.61.50. The petitioner and the other Assistant Engineer, Ramaswamy had verified the estimates and obtained counter signature from the Assistant Executive Engineer, Krishnaswamy and submitted the same to the Executive Engineer, one Thirumalai Kumaraswamy for approval and orders for execution. It is seen that an allegation is made jointly against the petitioner, the Assistant Engineer, namely, Ramaswamy and the Assistant Executive Engineer, namely, Krishnaswamy that they have violated the provisions under
Article 3(1)(b) of T.N. Financial Code Volume 1 and a Charge Memo dated 28.02.1997 containing three charges was issued to them under Rule 17(b) of the T.N.C.S. (D & A) Rules, for which, the petitioner submitted a detailed explanation, denying the charges. Though the enquiry officer has held that all the charges have not been proved against the petitioner, disagreeing with the same, the Government issued a show cause notice dated 29.05.1998 to the petitioner. In reply to the same, the petitioner submitted a detailed further representation on 03.06.1998. The Government, deviating from the findings of the enquiry officer held that Charge Nos.1 and 2 as partly proved and accepted the findings of the enquiry officer in respect of Charge No.3.
9. From the records, it is seen that before execution of work, the estimate abstract has been prepared by the petitioner on 23.08.1992 and the same was counter-signed by the Assistant Executive Engineer on 13.10.1992 and thereafter, sanctioned by the Executive Engineer. The cost of the Spartek tiles is adopted at Rs.61.50 per sq. ft. The copies of quotations were obtained from three firms, namely, (1) M/s.TALC Annamalai Nadar and Co. on 23.05.1992 quoting his rate at Rs.72/- per sq. ft. (2) M/s.Jeyam and Co., Madurai on 21.05.1992 quoting his rate at Rs.67/- per sq. ft. and (3) M/s.V.S.Kanda Nadar and Sons on 21.05.1992 quoting his rate at Rs.61.50 per sq. ft. along with the estimate. The Statement of the Disciplinary Authority would reveal that on enquiry by the Department for ascertaining the exact rate of spartek tiles in open market, it was ascertained that the tiles were sold at the range of Rs.19/- to Rs.23/- per sq. ft. only, whereas, the petitioner herein in collusion with the Assistant Engineer, Ramaswamy, the Assistant Executive Engineer, Krishnaswamy and the Executive Engineer concerned had obtained quotations with boosted rates from various companies and placed the Government to sustain a loss of Rs.23,310/-.
10. The counsel for the petitioner has referred to Clause 45 of the Tamil Nadu Public Works Department Code to strengthen his case. The relevant clause would read thus :
"45. The Executive Engineer is responsible for the Engineering features of designs and the rates in estimates prepared or sanctioned by him. "
In the case on hand, the Executive Engineer concerned has approved the estimates, prepared by the petitioner and the other Assistant Engineer and counter-signed by the Assistant Executive Engineer, and the same is not in dispute.
11. By order dated 04.03.1999 vide G.O.D.No.78, the second respondent has imposed the punishment of stoppage of increment for six months against the petitioner holding him guilty for the three charges framed against him. While Charge No.1 was framed against the petitioner for gross violation of
Article 3(1)(b) of Tamil Nadu Financial Code Volume I, since he failed to verify the bonafideness of the rates furnished in the estimate for the supply of spartek tiles, Charge No.2 was framed against him for gross violation of
Article 4 of the Tamil Nadu Financial Code Volume I, since he failed to detect the exorbitant rates quoted by the firm. Both these charges were held as not proved against the petitioner. Even as regards Charge No.3 that the petitioner committed grave irregularities for attaining personal gain and failed to maintain absolute integrity and devotion to duty and thereby violated Rule 20 of Tamil Nadu Government Servant Conduct Rules, the Enquiry Officer held that it is not proved.
12. When the said order was taken on review by the Government, the second respondent passed an order dated 17.05.2002 vide G.O.(D) No.228, Public works (F2) Department, Relevant portion of the said order would read as under:
" 6. ... The action of the Review Petitioner points to collusion with a view to commit fraud and thus cause financial loss to the Government. The Review Petitioner points to collusion with a view to commit fraud and thus cause financial loss to the Government. The Review Petitioner cannot escape from the charge of negligence also. The Government have therefore decided to accept the advice of the Tamil Nadu Public Service Commission and to reject the Review Petition and confirm the punishment. They accordingly direct that the Review Petition of Thiru S.Sridharan, Assistant Engineer to review the orders issued in the Government Order second read above imposing the punishment of stoppage of increment for six months without cumulative effect be disallowed and that the punishment already imposed be confirmed."
13. It is further seen that N.Krishnaswamy, now Executive Engineer, Public Works Department, Buildings Maintenance Division, Madurai was placed under suspension with effect from 19.08.1997, during his tenure as Assistant Executive Engineer, Madurai North Sub-Division, Public Works Department, Madurai for the same set of allegations made against the petitioner herein and a common order of punishment of stoppage of increment was issued against them. Aggrieved by the said punishment imposed on him, N.Krishnaswamy preferred an application before the Tamil Nadu Administrative Tribunal in O.A.No.5403 of 2001 and the Tribunal, by its order dated 23.05.2002, allowed the Original Application, setting aside the order of punishment of stoppage of increment without cumulative effect for six months, already imposed on him. On examination, the Government accepted the order passed by the Tribunal and held that the entire period of suspension of N.Krishaswamy has to be treated as duty under Rule 54(B)(3) and (4) of the Fundamental Rules. Such being the case, the petitioner claims that he being a similarly placed person is entitled to the same relief. It is pertinent to mention here that the counsel for the petitioner has reported to the court that the then Executive Engineer, Thiru.Thirumalai Kumaraswamy, who had also faced similar set of allegations has expired.
14. It is the case of the petitioner that while one of the officials termed as co-accused in the purchase of spartek tiles, namely, N.Krishnaswamy has been exonerated the punishment of stoppage of increment, why he alone should be imposed the punishment of stoppage of increment without cumulative effect for a period of six months. One more pertinent question raised in this case is that when the Enquiry Officer has held that the charges levelled against the petitioner as not proved, why the Government has taken a decision to deviate from the findings of the Enquiry Officer.
15. In this case, the Government has not attributed any reasons to differ from the findings of the Enquiry Officer and the reasons assigned by the Government are not speaking in nature. The material records would reveal that the earlier estimates prepared by the petitioner were counter-signed by the Assistant Executive Engineer and approved by the Executive Engineer concerned. Normally, after calling for number of quotations, the lowest quotation would be considered. It could be seen that the Executive Engineer is the competent authority to accord sanction of the estimates prepared by the Assistant Engineer and counter-signed by the Assistant Executive Engineer, as per the Tamil Nadu Public Works Department Code and accordingly, the Assistant Engineer has proceeded in executing the work.
16. In such circumstances, the allegations made against the petitioner, who is the review petitioner that he cannot escape from the charge of negligence is not supported by any material records. Therefore, the review made by the Government without assigning proper and cogent reasons to impose punishment in respect of the petitioner herein cannot be sustained as his co-delinquents have been exonerated.
17. Regarding the misclassification of work, it has to be stated that the estimate was prepared only after inspection and it was signed by the authority concerned. In other words, the building estimate was approved by the Executive Engineer, since it was a building maintenance work and hence, it was classified as maintenance and repair (special repair) work. Hence, by no stretch of imagination, it can be construed that there is misclassification of work. Further, the second respondent has also failed to see that the Dean, Rajaji Government Hospital, Madurai has counter-signed the estimate and following that, the work was executed. Hence, there is no violation of Financial Code Volume I.
18. It is well settled that reasoning is the heartbeat of every conclusion and without the same, the conclusion becomes defunct. The rationale behind it is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. Therefore, the order of punishment imposed on the petitioner is unsustainable in law on the grounds that it is non-speaking in nature and no reasons have been assigned for deviating from the findings of the Enquiry Officer, who held that the charges against the petitioner are not proved.
19. In the light of the above discussion and on consideration of the relevant materials and guidelines, I am of the considered view that the impugned orders passed by the second respondent in G.O.D.No.78 Public Works (E1) Department, dated 04.03.1999 and G.O.(D) No.228 Public Works (F2) Department, dated 17.05.2002 are not sustainable in law and accordingly they are set aside.
In fine, the Writ Petition stands allowed. No costs.
abe To:
1. The Engineer Incharge & Chief Engineer (General), Public Works Department, Chepauk, Chennai 600 005.
2. The Secretary to Government, Public Works Department, Fort St. George, Chennai 600 009