IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED; 21.09.2011 CORAM; THE HONOURABLE MR.JUSTICE T.RAJA W.P.NO.29056 OF 2003 G.Ravindran ..Petitioner vs 1.The Tamil Nadu Agro Industries Corporation Limited, Guindy Madras 2.The Managing Director The Tamil Nadu Agro Industriies Corporation Limited Guindy, Madras ..Respondents Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus to call for the records on the file of the 2nd respondent in 11239/P&A3/94 dated 6.1.2003 and quash the same as illegal, incompetent, irregular and without jurisdiction and further direct the respondents to pay back wages on and from 30.3.1995. for petitioner :Mr.V.Raghavachari for respondents :Mr.C.Venkatesalu (for R1 and R2) O R D E R The petitioner G.Ravindran filed the present writ petition challenging the impugned order passed by the second respondent- Managing Director, Tamil Nadu Agro Industries Corporation Limited, Guindy, Madras in 11239/P&A3/94 dated 6.1.2003 as illegal, incomplete, irregular and without jurisdiction and for further direction to the respondents to pay backwages to the petitioner on and from 30.3.1995. 2. Mr.V.Raghavachari, learned counsel appearing for the petitioner stated that (i)the petitioner after joining the service of the first respondent-Tamil Nadu Agro Industries Corporation https://hcservices.ecourts.gov.in/hcservices/ Limited, Guindy in 1969, as an Area Executive Engineer availed the Leave Travel Concession(L.T.C.) along with his family members and preferred his L.T.C.claim for Rs.6,294/- vide bill dated 18.1.1994 and got an amount of Rs.1,794/- after adjusting the tour advance of Rs.4,500/- received by him. In his L.T.C. claim the petitioner has shown the Ticket No.40841915/PNR 110103 for the entire group of his family consisting of 6 members including himself as having travelled in I Class on 26.12.93 from Madras (Egmore) to Tirunelveli by Express Train No.6119. It was ascertained that the Ticket issued under Sl.No.40841915/PNR-1110103 related to II Class journey by a male aged 31 years by 6019 Kanyakumari Express from Madras to Tirunelveli on 16.1.94. It was further confirmed that the petitioner G.Ravindran, while serving as Area Executive Engineer had taken along with him, his father A.S.Gambeeram, a Government Pensioner by using L.T.C. As the petitioner's father being a retired Government Servant receiving pension, he is not entitled to avail L.T.C. The petitioner had wrongly availed the L.T.C. by fradulently stating that his father was neither a Government servant nor a pensioner. On further verification, since the ticket mentioned above showed that the petitioner and family members have not even undertaken any such journey from Chennai to Tirunelveli in First Class Express Train, the Department thought it fit to issue charge memo to the petitioner. Accordingly, the charge-memo dated 12.12.1994 was issued to the petitioner calling upon him to submit his explanation and the charge memo contained the following 4 charges: "Charge No.1: that as indicated above, he had furnished a false certificate to the effect that his father viz Thiru A.S.Gambeeram is not a pensioner and applied for and availed of the Leave Travel Concession fradulantly for his father also. By this dishonesty act he has violated the Rule No.51 of the Service Rules of TAI. (Basis:-His Letters dt.13-12-93 and 05-10-94) Charge No.2:that as indicated above, he has fraudulently claimed and got Rs.3102/- as I Class train fare for him and his family members in his Leave Travel Concession claim by giving a false railway ticket number, which does not pertain to his claim and by this act he has committed serious financial irregularity. Thiru G.Ravindran has therefore not only violated the Rule No.20(1) of the Tamilnadu Government Servants Conduct Rules 1973 but also has rendered himself untrustworthy unreliable and unfit to hold the responsible post of Area/Assistant Executive Engineer in this organisation. (Basis:- Copy of the ticket No.40841915 as also his Leave Travel Consession bill dt.18-1-94) https://hcservices.ecourts.gov.in/hcservices/ Charge No.3:that as indicated above although he had been absenting himself from duty during the period from 05-08-94 to 12-08-94 unauthorisedly but subsequently tampered with the Attendance Register and manipulated the entries to show that he was on duty, Leave, on Duty etc. By this deliberate act of tampering with the official records Thiru G.Ravindranhas exhibited a conduct, highly unbecoming of the managerial post he was holding and thereby rendered himself guilty of violating the Rule No.20(1) & (2) of the Tamilnadu government Servants Conduct Rules 1973. (Basis:- Copy of the attendance Register and the attendance register in original.) Charge No.4:that on account of his failure to achieve the target and his poor performance, the Tirunelveli Centre has incurred a loss of Rs.0.90 Lakhs upto September'94, for which Thiru G.Ravindran, Area Executive Engineer being the Unit Head is directly responsible. (Basis:-Performance Report) (ii) On receipt of the said charge memo, the petitioner submitted his detailed explanation on 07.1.1995. In his reply to Charge No.I, the petitioner took a stand that there was no motive to cheat to claim the amount of L.T.C. for his father. He further stated that his father was getting hardly Rs.1,000/- towards pension, which was hardly sufficient to maintain himself and the petitioner's mother, apart from meeting his domestic expenses involved. On that basis, he claimed that his father was dependant on him as he was the only son. As per the Travelling Allowance Rule 2(iv) applicable to Government Servants, Family for the purpose of TTA rules include, wife and children, dependants on the Government Servant. On that basis, he further claimed that his father and mother were fully depending on him. Therefore, in the strict sense, the claim made on behalf of his father could not be termed as illegal or irregular. (iii)In respect of charge No.2, namely, violation of Rule 21 of the Government Servant Conduct Rules, by claiming Rs.3,102/- for first class train fare, it was stated that when he had requested his Commercial Accountant-V.T.Lakshmipathy to secure the ticket, the petitioner was given the Ticket Number as PNR 310010 First Class ticket No.5672745 and subsequently informed the present Number. After noting down the Number in his Diary, the petitioner has given the later Number which V.T.Lakshmipathy has furnished to him in his own handwriting for claiming T.A. That would indicate that V.T.Lakshmipathy was instrumental to the present state of affair, because the said V.T.Lakshmipathy, Commercial Accountant alone prepared the T.A.bill and misrepresented the facts. As a Touring Officer, the petitioner had no time to scrutinize the T.A.Bill and he was under the bonafide impression that his https://hcservices.ecourts.gov.in/hcservices/ Commercial Accountant would prepare the claim correctly and therefore, he has signed in good faith. Though he had been in the department for over 25 years and known for maintaining discipline in the office, only for maintaining strict compliance of the rules, the said V.T.Lakshmipathy-Commercial Accountant had created all these problems. On that basis, the petitioner further stated that his travel was not in dispute and he was entitled to claim the aforesaid amount. Accordingly, he prayed the Managing Director to excuse and exonerate him of the charge. (iv) In respect of Charge No.3, the petitioner was absented from duty during the period from 06.8.1994 to 12.8.1994 and subsequent tampering of the Attendance Register, he had given an explanation that his tour programme had been approved by the Executive Engineer and the M.D.,on 8/9.8.1984. Therefore, his absence from the Headquarters cannot be at any stretch of imagination termed as unauthorised. It was further stated that he had been on tour between 06.8.1994 to 12.8.1994, barring 10.8.1984 on which date he was on casual leave. He further claimed that the handwriting in the Attendance Register from 06.8.1994 to 12.8.1994 is not in his own handwriting as it is that of one Mr.Rajagopal, AEE/Fertilizer to whom he has handed over the charge while he was away from the quarters. Therefore, if there is any tampering of record, the tampering would have happened only at the instance of the said Rajagopal for which the petitioner cannot be held responsible. Further, he alleged that the said V.T.Lakshmipathy alone has failed to close the Attendance Register to Mr.Rajagopal/AEE(Fertilizer) for counter signature. Only to create the records and cause embaracement, the said V.T.Lakshmipathy had deliberately indulged in such activities to please the superior officer. (v) The 4th charge pertains to evaluation to achieve the target. In this connection, the petitioner has also given a reply stating that he had achieved 72.9% of the target whereas the other units have not secured 65% of the target. However, 3 persons in the same cadre were responsible for achievement of the target and out of 72.19% of work achieved, he had been responsible for 50% of the achievement. This will indicate that the socalled poor work cannot be attributed to him and the deficiency lies against others and on that basis, he further explained that the charge itself is vague as it fails to furnish on which quarters his work is deficient. (vi) The disciplinary authority having found his explanation "not satisfactory" ordered for an enquiry. After completion of the enquiry on 20.2.1995, the enquiry officer submitted his report stating that the first three charges were held as "proved" and with regard to the 4th charge it was held "partly proved." The disciplinary authority by furnishing the copy of the enquiry report, sent the second show cause notice calling upon the https://hcservices.ecourts.gov.in/hcservices/ petitioner to furnish his explanation. The petitioner in his further explanation prayed for exoneration from the charges. Rejecting his further explanation, the disciplinary authority accepting the report of the enquiry officer, passed the order of dismissal dated 14.7.1995. (vii)Aggrieved by the order of dismissal, an appeal was filed by the petitioner before the Board of Directors. On the basis of the findings of the enquiry officer, as confirmed by the disciplinary authority, the Board of Directors also rejected the appeal preferred by the petitioner. As against the rejection of appeal, the petitioner filed W.P.No.12082/1995. By order dated 23.10.2002 this Court remitted the matter back to the disciplinary authority to reconsider the petitioner's claim. Thereafter, the disciplinary authority reconsidered the explanation of the petitioner and found him guilty of charges 1 and 2 and exonerated the petitioner in respect of charges 3 and 4. However, the disciplinary authority maintained the order of dismissal from service. Aggrieved by the order of dismissal, the petitioner again preferred an appeal to the Board of Directors. In the 231st meeting of the Board of Directors, the appeal filed by the petitioner was dismissed. However, before passing the order by the appellate authority, once again the petitioner filed W.P.No.16968/2003 challenging the dismissal order dated 6.1.2003. Therefore, this Court dismissed his second writ petition- W.P.No.16988/03 at the admission stage itself on 20.6.2003. Again the petitioner has filed the present writ petition challenging the impugned order dated 6.1.2003. 3.(i) In reply, it was contended by the learned counsel for the respondents that the petitioner after suffering the order of dismissal dated 6.1.2003 passed by the disciplinary authority- second respondent has admittedly preferred an appeal before the Board of Directors. The Board of Directors accepted the said order of dismissal and rejected the appeal preferred by the petitioner. Admittedly, the order passed by the appellate authority has not been till date challenged by the petitioner, therefore, the writ petition challenging only the order passed by the original authority without challenging the appellate order dated 22.09.2003 passed by the Board of Directors of the respondent Corporation is legally not maintainable in law. (ii) Secondly, it was contended that the petitioner during the pendency of the appeal before the Board of Directors,unsuccessfully has challenged the very same order dated 6.1.2003 passed by the disciplinary authority in W.P.No.16968/2003 and the said W.P.No.16968/2003 was also dismissed at the admission stage on 20.6.2003 and hence, this writ petition is not legally maintainable and accordingly, he prayed for dismissal of the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 4. Heard the learned counsel for the respective parties. 5.(i)The Board of Directors-the appellate authority, in their 231st meeting, dismissed the appeal preferred by the petitioner on 17.06.2003 and the same was communicated by letter NO.8487/CSS/95, dated 22.09.2003, but this has not been challenged. Therefore, the present writ petition filed by the petitioner against the order passed by the disciplinary authority dated 6.1.2003 is legally not maintainable for yet another simple reason that the present impugned order dated 6.1.2003 having been confirmed by the appellate authority, namely, the Board of Directors in their 231st meeting held on 17.06.2003 and such communication also having been communicated to the petitioner in Letter No.8487/C.S.S./95 dated 22.9.2003. (ii) As the petitioner accepted the order passed by the Board of Directors-the appellate authority dated 22.9.2003, the present writ petition is not maintainable. Once the order passed by the disciplinary authority having merged with the order passed by the appellate authority, it is not open to the petitioner to challenge the order passed by the disciplinary authority when he has not preferred to challenge the order passed by the appellate authority. (iii)Moreover, the petitioner had previously filed W.P.No.16968/2003 challenging the order dated 6.1.2003, which came to be dismissed at the admission stage itself on 20.6.2003 during the pendency of the appeal preferred on 7.2.2003. Therefore, while looking at the issue from any angle, the present writ petition is not maintainable, as the impugned order dated 6.1.2003 has merged with the appellate order passed by the Board of Directors, which has been communicated to the petitioner on 22.9.2003. 6. Consequently, the writ petition is dismissed as not maintainable. No costs. sal Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Tamil Nadu Agro Industries Corporation Limited, Guindy Madras 2.The Managing Director The Tamil Nadu Agro Industriies Corporation Limited Guindy, Madras + 1 cc to Mr. V. Raghavachari, Advocate SR No.58966 + 1 cc to Mr. C. Venkatesalu, Advocate SR No.58503 UG(CO) SR/29.10.2011 W.P.NO.29056/2003 https://hcservices.ecourts.gov.in/hcservices/