1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (CONTEMPT JURISDICTION) TUESDAY, THE 31ST DAY OF AUGUST, 2010 THE HON'BLE MR.JUSTICE T.RAJA CONTEMPT PETITION No.740 of 2010 AND SUB APPLICATION NO.280 OF 2010 AND CONTEMPT PETITION NO.494 OF 2010 ********* D.Gurusamy, New No.21, Old No.13-A, Karpagambal Nagar, Mylapore, Chennai – 600 004. ... Petitioner in both Contempt Petitions vs. Dr.Shanthini Kapoor IAS., The Chief Executive Officer (CEO), Tamil Nadu Khadi and Village Industries (Khadi Board), Kuralagam, Chennai 600 108. ... Respondent in Contempt Petn.No.740/2010 G.Sundaramurthy, IAS, The Commissioner, Director of Industries and Commerce - Holding additional Charge of Chairman and Managing Director, Tamil Nadu Leather Development Corporation Limited (TALCO), Chepauk, Chennai 600 005. ... Respondent in Contempt Petn.No.494/2010 SUB APPLICATION NO.280/2010 Dr.Shanthini Kapoor IAS., The Chief Executive Officer (CEO), Tamil Nadu Khadi and Village https://hcservices.ecourts.gov.in/hcservices/ 2 Industries (Khadi Board), Kuralagam, Chennai 600 108. ... Petitioner Vs D.Gurusamy, New No.21, Old No.13-A, Kakrpagambal Nagar, Mylapore, Chennai – 600 004. ... Respondent Contempt Petition No.740 of 2010 praying that this Court be pleased to punish the respondent for having violated the order of this Hon'ble Court dated 26/10/2009 and made in W.P.No.11015 of 2009. Sub Application No.280 of 2010 praying that this Court be pleased to dispense with the personal appearance of the petitioner pending disposal of the above contempt petition. Contempt Petition No.494 Of 2010 praying that this Court be pleased to punish the respondentS for having violated the order of this Hon'ble Court dated 26/10/2009 and made in W.P.No.11015 of 2009 The above Contempt Petitions and Sub Application coming on 04/08/2010 before this Court for hearing in the presence of Mr.V.Suthakar, Advocate for Mr.M.S.Palanisamy, Advocate for the petitioner in Contempt Petition Nos.740 & 494 of 2010 and for the respondent in Sub Application No.280 of 2010; and of Mr.S.Packiaraj, Advocate for the respondent in Contempt Petition No.740 of 2010 and for petitioner in Sub Application No.280 of 2010; and of Mr.S.Sathiamurthi, Advocate for the respondent in Contempt Petition No.494 of 2010; and upon reading the petition and https://hcservices.ecourts.gov.in/hcservices/ 3 the affidavit of D.Gurusamy, filed in contempt petition No.740 & 494 of 2010; and the application and the affidavit of Dr.Shanthini Kapoor, IAS., filed in Sub Application No.280 of 2010 ; and the Counter Affidavit of G.Sundaramurthy, IAS, filed herein; and the Counter Affidavit of Dr.Shanthini Kapoor, IAS, filed herein; and having stood over for consideration, the Court made the following order:- The petitioner herein seeks to punish the respondents under Section-11 of the Contempt of Courts Act, 1971, for having violated the order, dated 26.10.1999, passed in W.P. No.11015 of 2009, whereby, the respondents were directed to take steps within the time stipulated therein to settle the retirement and pension benefits of the petitioner. 2. The facts leading to filing of the contempt petitions need to be abridged as follows:- The petitioner D. Gurusamy, while serving as Works Manager of Tamil Nadu Small Industries Corporation Limited (TANSI), came to be transferred and posted as Works Manager of Tamil Nadu Leather Development Corporation (TALCO). By G.O. Ms. No.54, Small Industries (SID) Department, dated 30.10.2000, the TALCO was taken over by the Tamil Nadu Khadi and Village Board (KHADI BOARD) and subsequently, the employees of the TALCO were absorbed into service by the Khadi Board. The petitioner was posted as General Manager, https://hcservices.ecourts.gov.in/hcservices/ 4 Khadi Board, Chennai, and he continued in the said post until he attained the age of superannuation on 30.04.2009. When the petitioner was serving in the earlier Department – TALCO, he was issued with three charge memos dated 15.04.1994, 21.03.1996 and 02.11.1996. To deal with the first charge memo, dated 15.04.1994, an IAS Officer was appointed as Enquiry Officer. After conducting enquiry, he submitted his report on 15.11.1997, holding that the charges are not proved. Acting on such finding, the charges were dropped and the Khadi Board passed a Resolution and sent the same seeking concurrence therefor from the Government. The Government, after receiving the resolution, directed the Khadi Board, being the competent authority, to take its decision thereon. With regard to the second charge memo, dated 21.3.1996, an enquiry was held and, on conclusion of the enquiry, the Enquiry Officer submitted his report on 06.11.1998, holding that only minor lapses against the petitioner found proved, for which, stoppage of increment for one year without cumulative effect was recommended. The Board, in its 75th Meeting held on 28.12.1998, accepting such finding, passed a Resolution and forwarded the same to the Government for concurrence. In respect of 3rd charge memo, dated 02.11.1996, on completion of the enquiry, the Enquiry Officer submitted his report on 06.11.1998, finding that there were only technical https://hcservices.ecourts.gov.in/hcservices/ 5 lapses on the part of the petitioner and recommending that no punishment was warranted. On the basis of such findings and recommendations made, the Khadi Board, in its 75th Meeting, concluded that two set of charges pertaining to first charge Memo dated 15.04.1994 and the 3rd charge memo dated 02.11.1996 would be dropped and that the suspension period the petitioner underwent between 08.05.1990 and 26.11.1993 would be treated as ‘on duty’. However, the said Resolution was not given effect to, in view of the fact that the subsequent Chairman and Managing Director of TALCO took a decision to re-open the entire issue by framing fresh charges and to proceed further. A decision to that effect was placed in the 83rd and 84th Board Meeting held on 12.06.2000 and 13.09.2000 respectively. It is relevant to point out that the petitioner was permanently absorbed in the Khadi Board with effect from 01.12.2000 consequent upon winding up of TALCO vide G.O.Ms.No.54, Small Industries (SID) Department, dated 30.10.2000. Since the petitioner, in the meantime attained the age of superannuation on 30.04.2009, he was permitted to retire on the afternoon of 30.04.2009 without prejudice to the disciplinary proceedings pending against him. However, the petitioner suffered the delay in receiving the terminal benefits and the monthly pension payable to him. Therefore, he filed W.P. No.11015 of 2009 on the file of this Court, https://hcservices.ecourts.gov.in/hcservices/ 6 seeking issuance of a writ of mandamus, directing the respondents to pay the accrued terminal benefits with 12% interest from 01.05.2009 and monthly pension payable to him from 01.06.2009 onwards. It is pertinent to advert to here two aspects – firstly, the 4th respondent in the W.P. (respondent in contempt petition No.494 of 2010) – the Commissioner, Director of Industries and Commerce Holding Additional Charge of Chairman and Managing Director, TALCO, Chepauk, Chennai-5, neither engaged a counsel to represent the case nor filed any document or counter affidavit to oppose the claim made by the petitioner; secondly, R3 (respondent in contempt petition No.740 of 2010) – the Chief Executive Officer (CEO), Khadi Board, Chennai-108, though represented by counsel, did not choose to file any counter affidavit to oppose the claim of the petitioner for payment of accrued terminal benefits with 12% interest from 01.05.2009 and the monthly pension payable to the petitioner. From this background, the Writ Petition was taken up for final disposal on 26.10.2009 and, after considering the prayer of the petitioner in the light of the submissions made and arriving at a finding that, out of the three charge memos, charge memo Nos.1 and 3 dated 15.04.1994 and 02.11.1996 came to be dropped on the ground that the petitioner was not found guilty of any of the charges leveled against him and he was found guilty only in respect of charge memo dated https://hcservices.ecourts.gov.in/hcservices/ 7 21.03.1996, for which, a punishment of stoppage of increment without cumulative effect for one year was imposed, and taking note of the Resolution passed by the Khadi Board in its 75th Meeting held on 28.12.1998 to the following effect:- “the Enquiry Officer Thiru.R.Ramalingam, Addl. Director of Industries & Commerce has held that charges Nos.1 to 4 & 8 as not proved. These are grave charges misuse of official position resulting in shortage of stock to the tune of nearly Rs.55.00 lakhs etc. These charges have been held not proved. Charges No.5,6&7 deal with failure to verify stock in the stores, furnishing of incorrect stock statement to the bank and similar procedural lapses. With regard to the charge regarding filing incorrect stock statement, the Board felt that sometimes this resorted to safeguard drawing power in the best interest of the corporation. This does not enrich any individual though it is technically speaking not proper. Though the nature of the lapses proved are procedural in nature the Board resolved to inflict a punishment of stoppage of increment for one year without cumulative effect. “, this Court, highlighting the aspect that the Board further resolved to regularize the period of suspension as duty, and adverting to the fact that no departmental proceedings were pending against the petitioner, directed thus:- “The 4th respondent is directed to pass suitable orders to the petitioner to get monthly pension by complying the minor formalities within a period of six weeks from the date of receipt of a copy of this order. The third respondent is the authority to make the pensionary benefits including the monthly pension. It is needless to mention that the 3rd https://hcservices.ecourts.gov.in/hcservices/ 8 respondent shall process the entire pension proposal and other proposals for the purpose of getting retirement benefit, including the monthly pension within 3 weeks from the date of receipt of a copy of this order. The above said both exercises shall be done together within a period of 9 weeks. “ Now, the petitioner has once again approached this Court by filing the above contempt petitions alleging non-compliance of the aforementioned direction on the part of the respondents herein. 3. The submissions made by the learned counsel appearing for the petitioner are that, after passing of the final order, directing the third respondent to process the entire pension papers for the purpose of getting retirement benefits including monthly pension, and the fourth respondent to pass suitable orders, by complying with minor formalities involved, in favour of the petitioner so that he could get monthly pension within six weeks from the date of receipt of copy of the order; the 4th respondent in the WP/respondent in Contempt Petition No.494 of 2010, in proceedings No.019/TALCO/2009, dated 16.04.2010, observed that, in the Special Board Meeting held on 06.04.2010, it was decided to modify the 75th Board Meeting decision, thereby, it will have the effect of imposing a punishment of one year increment cut without cumulative effect and https://hcservices.ecourts.gov.in/hcservices/ 9 accordingly, the 2nd part of the order came to be modified in view of the Ruling in the FR, with the net result, the delinquent/petitioner was imposed with a punishment of annual increment cut for one year without cumulative effect and the period of suspension which was earlier regularized as duty period came to be treated not as duty in view of the Ruling in the FR as he has not been exonerated fully, however, the period of suspension held to be treated as duty for the specific purpose of calculation of eligible DCRG and Leave salary in terms of Ruling 7 of FR 54-B. It is further observed that the petitioner is not eligible for any back- wages for the suspension period from 08.05.1990 to 28.11.1993 ie., for about 3 ½ years. According to the learned counsel for the petitioner, the above proceedings, dated 16.04.2010, passed by the respondent in Contempt Petition No.494 of 2010 is violative of this Court’s Order, dated 26.10.2009, passed in the WP. Though this Court has already passed a detailed order, giving specific direction as referred to above to both the respondents so that the petitioner could receive the pension and other attendant benefits accrued to him, by reason of the proceedings in question, the petitioner could not get those benefits so far. It was forcibly contended by the learned counsel for the petitioner that an order passed by this court is required to be implemented in letter and spirit, but, in the present case, the respondents herein have taken the court https://hcservices.ecourts.gov.in/hcservices/ 10 proceedings as a game of chess. Every order of the court is required to be interpreted in a fair and reasonable manner keeping in view the entire background of a particular case and no litigant should be allowed to take advantage of some loophole. If the said respondents found that the order of this Court is wrong having regard to any provision in the Fundamental Rules or in Pension Rules, they would have filed an appeal before higher court. Without doing so, resorting to pass the proceedings dated 16.04.2010 restricting the benefits granted by this Court would amount to sitting on Appeal against this Court’s order which exercise is undoubtedly a gross violation of the Order dated 26.10.2009. Therefore, for disobedience of the order passed by the respondents/contemnors, they should be punished suitably. 4. The learned counsel appearing for the 4th respondent in Contempt Petition No.494 of 2010, by filing counter for the first time in the contempt proceedings, admitted that they could not file counter affidavit in the main writ petition due to certain extraordinary circumstances, but at the same time, denied the allegation that the order of this Court was violated, by citing FR-54B. It was further contended stated that the period of suspension was treated as duty for the specific purpose of calculation of eligible DCRG and leave salary. Referring to FR-54B which provides that when a Government servant, who was suspended, is fully https://hcservices.ecourts.gov.in/hcservices/ 11 exonerated of the charges on appeal, the period of suspension shall be treated as duty, it was again submitted that in the case on hand, the petitioner was not fully exonerated and since he was imposed with a punishment of stoppage of increment without cumulative effect for one year, it was ordered that he was not eligible for back-wages for the suspension period. Therefore, it cannot be said that the order of this Court was in any way violated by the respondents. 5. Straight away, it can be said that the argument and stand made/taken by the respondents does not merit acceptance in view of their own decision taken in the 75th Board Meeting held on 28th December, 1998, wherein, the Board, while discussing the findings of the Enquiry Officer as well as charge Nos.1 to 4 and 8, came to the conclusion that the Board resolved to regularize the period of suspension as on duty. The Board has specifically dealt with the case of the petitioner, resolving that the Enquiry Officer Thiru.R.Ramalingam, Additional Director of Industries & Commerce had held charge Nos.1 to 4 and 8 which are grave in nature pertaining to misuse of official position resulting in shortage of stock to the tune of Rs.55 lakhs etc, as not proved and also regarding charge Nos.5, 6 and 7 dealing with failure to verify the stock in the stores, furnishing of incorrect stock statement to the Bank https://hcservices.ecourts.gov.in/hcservices/ 12 and similar procedural lapses. With regard to the charge relating to filing of incorrect stock statement, the Board felt that sometimes this resorted to safeguard drawing power in the best interest of the corporation and this does not enrich any individual though it is technically speaking not proper. Though the nature of the lapses proved are procedural in nature, the Board resolved to inflict a punishment of stoppage of increment for one year without cumulative effect. The Board further resolved to regularize the period of suspension as on duty. However, since the above resolution was not given effect to due to the fact that the subsequent Chairman and Managing Director of TALCO took a decision to re-open the entire issue by framing fresh charges and to proceed further, a decision to that effect was placed in the 83rd and 84th Board Meeting held on 12.06.2000 and 13.09.2000 respectively. Subsequently, the petitioner was permanently absorbed in the Khadi Board with effect from 01.12.2000 consequent on the winding up of TALCO by virtue of G.O. Ms. No.54, dated 30.10.2000. In the meanwhile, the petitioner also attained the age of superannuation on 30.04.2009. Therefore, he was permitted to retire in the afternoon of 30.04.2009 without prejudice to the disciplinary proceedings pending against him. 6. Therefore, in the light of the fact that the Board resolved to regularize the period of suspension as ‘on duty’ https://hcservices.ecourts.gov.in/hcservices/ 13 and also in view of the fact that the petitioner already attained the age of superannuation on 30.04.2009, this Court allowed the Writ Petition with a direction to respondent No.4 therein to pass suitable orders enabling the petitioner to get monthly pension by complying with the minor formalities within a period of six weeks from the date of receipt of copy of the order while directing the 3rd respondent to process the entire pension proposal and other proposals for the purpose of enabling the petitioner getting retirement benefits including the monthly pension. Under this background, when this Court on the basis of the decision taken by the Board allowed the Writ Petition on 26.10.2009 to regularize the period of suspension as on duty, subsequent thereto passing an order, dated 16.04.2010, by the 4th respondent once again recalling the decision of the Board in the 75th Meeting, thereby deciding not to regularize the period of suspension as on duty by citing FR- 54-B that the petitioner having not fully exonerated, the period of suspension will not be treated as duty and therefore, he is not eligible for back-wages for the period of suspension, is nothing but sitting on appeal against the order passed by this Court. Because, the 75th Board Meeting had already considered the entire issue including the operation of FR-54B in the case of the petitioner, however, the resolution passed in the said meeting was not given effect to because the subsequent Chairman and Managing https://hcservices.ecourts.gov.in/hcservices/ 14 Director of TALCO took a decision to re-open the entire issue by framing fresh charges and to proceed further. The decision to that effect was placed in the 83rd and 84th Board Meeting held on 12.06.2000 and 13.09.2000 respectively. But, in the meanwhile, since the petitioner retired from service, he was allowed to retire and thereafter, he filed the Writ Petition. Till passing of orders in question by this Court in the writ petition, the 2nd respondent herein had not taken any action to re-open the entire issue by framing fresh charges so as to proceed further. Therefore the second respondent was bound by the decision taken by the 75th Board Meeting held on 28th December, 1998, resolving to regularize the suspension period as on duty. Though the counter affidavit filed by the second respondent in the Contempt proceedings states that, in obedience to the orders of this Court, the period of suspension was treated as duty for the specific purpose of calculation of eligible DCRG and leave salary, it is not open for them to restrict the resolution passed in the 75th Board Meeting to say that he was not eligible for back-wages for the period of suspension on the ground that he was not fully exonerated in view of imposition of punishment of annual increment cut for one year without cumulative effect. It is pertinent to keep in mind that the Board, in its 75th Board Meeting, only after taking note of the aspect that the petitioner suffered the punishment of annual increment cut https://hcservices.ecourts.gov.in/hcservices/ 15 for one year without cumulative effect, decided to regularize the period of suspension as ‘on duty’. While having not taken any further decision till the order dated 26.10.2007 came to be passed by this Court in the writ petition, directing the second respondent herein to give benefits of the resolution passed in the 75th Board Meeting, it is neither open for him to deny the said decision taken by the 75th Board Meeting, regularizing the period of suspension as ‘on duty’ nor to pass subsequent proceedings like the one dated 16.04.2010, refusing to regularize the services stating that the petitioner is not eligible for any back-wages for the suspension period from 08.05.1990 to 26.11.1993. 7. At last at one point of time, right or wrong any dispute is bound to be resolved and finally settled once and for all in accordance with law. After waiting endlessly all the litigants as a last resort approached the Court of law to bring down the curtains to a final end. 8. In the case on hand, the petitioner suffered disciplinary proceedings from 08.05.1990 to 26.11.1993. The petitioner was issued with three charge memos dated 15.5.1994, 21.3.1996 and 2.11.1996. The Government thought it fit to deal with the first charge memo dated 15.4.1994, therefore appointed an I.A.S.Officer as an enquiry officer https://hcservices.ecourts.gov.in/hcservices/ 16 who after completing the enquiry submitted his report holding that the charges are not proved. Thereupon, the charges were also dropped. Further, the Khadi Board-the first respondent herein passed a resolution to drop the proceedings and also sent the same seeking concurrence therefor from the Government. The Government being the competent authority, after receiving the resolution, directed the Khadi Board-the first respondent to take its decision thereon. Therefore, the issue in respect of the first charge memo is finally concluded. 9. In respect of second charge memo dated 21.03.1996, the enquiry officer found that only minor lapses against the petitioner found proved and thereupon the petitioner was also imposed with the punishment of stoppage of increment for one year without cumulative effect. The Khadi Board in its 75th meeting held on 28.12.1998, accepting such finding passed the resolution by forwarding the same to the Government for concurrence. 10. In regard to the 3rd charge memo dated 02.11.1996, on enquiry finding that there were only technical lapses on the part of the petitioner, the enquiry officer recommended that no punishment to be taken against the petitioner. Therefore, the issue in respect of the 3rd charge memo also became final. https://hcservices.ecourts.gov.in/hcservices/ 17 11. In this context, let me come back to the 75th meeting held by the Khadi Board, the first respondent herein wherein it was concluded that the suspension period underwent by the petitioner between 08.05.1990 and 26.11.1993 sought to be treated as "on duty". But that resolution was not given effect to till 2000. Again, the decision was placed in the 83rd and 84th Board meetings held on 12.6.2000 and 13.9.2000 respectively. After the above Board meetings the petitioner was permanently absorbed in the Khadi Board with effect from 1.12.2000 as resolved by winding up of TALCO by G.O.Ms.No.54, Small Industries(SID) Department, dated 30.10.2000. Later on when the time for retirement of the petitioner came on 30.4.2009, he was also permitted to retire on the afternoon of 30.4.2009, but without prejudice to the disciplinary proceedings pending against him. Since the petitioner suffered delay in receiving the terminal benefits and the monthly pension payable to him, he filed the present Writ Petition- W.P.No.11015/2009 with the prayer to issue a writ of Mandamus directing the respondents to pay the accrued terminal benefits with 12% interest from 01.05.2009 and monthly pension payable to him from 01.06.2009 onwards. 12. The chain of events indicated above goes without saying that the respondent department having seized of the matter from 1994 though after imposing punishment of https://hcservices.ecourts.gov.in/hcservices/ 18 stoppage of increment in 1998 kept quite for 11 years without taking any decision. However, when the petitioner reached the age of superannuation on 30.4.2009 again without allowing the petitioner to retire peacefully allowed the petitioner to retire without prejudice to the disciplinary proceedings. At this juncture, when the matter was pending on the file of this Court, though the notices were served on the respondents, the TALCO-4th respondent in the writ petition failed to file their reply in the main Writ Petition. More so, TALCO-the 4th respondent in the writ and the 2nd respondent herein did not even care to file even Vakalatnama by engaging any counsel to defend their case. Therefore, this Court on the basis of the pleadings by perusing the resolution passed by the Khadi Board in its 75th meeting held on 28.12.1989 stating that the Board resolved to inflict