IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.03.2009 CORAM THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.32672 of 2003 S.Rathinavelu ... Petitioner v. 1. The Chairman, Tamil Nadu Water Supply and Drainage Board, 31, Kamarajar Salai, Chepauk, Chennai-5. 2. The Managing Director, Tamil Nadu Water Supply and Drainage Board, 31, Kamarajar Salai, Chepauk, Chennai-5. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the records of the second respondent in Proc.No.64095/Estt.(DP.1)/A2/97-41, dated 18.08.1999 and the order of the first respondent in B.P.Ms.No.40 (TWAD-Estt (DP) Wing), dated 07.02.2000 and quash the same. For Petitioner : Mr.Kandavadivel Duraisamy For Respondents : Mr.Sudharshana Sundar O R D E R The petitioner has challenged the order of the Managing Director, Works Supply and Drainage Board, Chennai, second respondent, dated 18.08.1999, imposing a penalty of stoppage of increment for one year with cumulative effect and for recovery of Rs.11,721/- and the order of the Tamil Nadu Water Supply and Drainage Board, first respondent herein, in B.P.Ms.No.40(TWAD-Estt (DP) Wing), dated 07.02.2000, rejecting the statutory appeal. 2. Facts leading to W.P.No.32672 of 2003 are as follows: The petitioner was appointed as Assistant Engineer in 1977 in the respondent-Board and thereafter, promoted as Assistant Executive Engineer in the year 1987. A charge memo, dated 08.01.1998 was issued to the petitioner. Similar set of charges were also issued to other officials, viz., Executive Engineer, Assistant Engineers under Regulation 9(b) of the TWAD Board Employees (Discipline and Appeal) Regulation, 1972, with reference to certain irregularities said to have taken place during 1988-89. In response to the above, the petitioner submitted a detailed explanation on 04.06.1988. The enquiry officer, by his report, dated 13.04.1999, held that charges 1 and 2 as not proved and Charge No.3 as partly proved. According to the petitioner, there are two components in Charge No.3, viz., (a) Allegation regarding recording of measurement/check measurement prior to the date of agreement, and (b) Issuance of materials before signing of work order. It is further submitted that in respect of Charge No.3, the enquiry officer held that the measurement/check measurement was recorded prior to the issuance of the agreement, but after issuance of work order and payment was made to the works only after the conclusion of the agreement. With reference to the second component of Charge No.3, viz., issuance of materials before signing the work order, the same was held as not proved. In view of the above, the enquiry officer held that the charge No.3 as partly proved. The petitioner submitted his further representation to the findings recorded in the enquiry. Without appreciating the defence in proper perspective, the second respondent imposed a punishment of stoppage of increment for one year with cumulative effect and also ordered for recovery of Rs.11,721/-. It was also ordered that this punishment would have effect on his pension. The statutory appeal preferred to the first respondent was rejected on 07.02.2000. In these circumstances, the petitioner has challenged the order of penalty. 3. Assailing the impugned orders, Mr.Kandavadivel Doraisamy, learned counsel appearing for the petitioner submitted that during 1988-89, severe drought conditions prevailed in Coimbatore District and the then District Collector in the course of the review meeting directed the Executive Engineer (immediate superior officer to the Petitioner) to complete all Power Pump Water Supply Scheme on war footing basis, so as to avoid the sanction of bore well under drought programme to the proposed Power Pump Scheme. Only in those circumstances, works covered under Charge No.3 were completed on war footing basis without waiting for the execution of formal agreement, but only after issuance of work order. He further submitted that the above fact was brought to the notice of the authorities and the petitioner, being a subordinate official, only acted as per the instructions given by his immediate superior officer, viz., Executive Engineer. 4. Pointing out that the payment was made only after the conclusion of the agreement, learned counsel for the petitioner submitted that inasmuch as there was no financial loss to the Board, recovery of Rs.11,721/- is erroneous. He further submitted that no charges were framed against the Petitioner for the alleged financial loss caused to the Board and even in the findings of the Enquiry Officer, there is no indication as to whether, the Petitioner had caused any financial loss to the Board. Such being the case, the second respondent erred in coming to the conclusion that there was a financial loss. In the absence of any charge and opportunity of defence, the petitioner cannot be condemned unheard without any basis. 5. Learned counsel for the petitioner submitted that issuance of the materials before signing of the work order was insisted only to carry out the completion of power pump water supply scheme on war footing basis during drought condition, which prevailed in Coimbatore District and therefore, the same cannot be said to be a misconduct. Pointing out that when similar charges were issued to the then Executive Engineer, his immediate Superior Officer, who was also inflicted with a punishment of stoppage of increment, this Court, by order dated 19.03.2003 in W.P. No. 16298 of 2000, set aside the order of punishment. The appeal preferred by the Board in W.A.No.2421 of 1993, was also dismissed on 29.07.2003. He further submitted that the order, setting aside the penalty was duly implemented in the case of the then Executive Engineer and by applying the above said decisions to the facts of the case, the petitioner is entitled to the similar benefit. 6. Placing reliance on a decision in P.V.Mahadevan v. M.D. Tamil Nadu Housing Board reported in 2005 (4) CTC 403, learned counsel for the petitioner submitted that the alleged irregularity is said to have taken place during 1988-89 and after an inordinate delay of nearly 10 years, the charges were framed on 08.01.1998. In the absence of any acceptable reasons, the initiation of disciplinary proceedings and the resultant punishment imposed on the petitioner for the belated charges, has to be set aside. He also submitted that the appellate authority has failed to consider the parameters set out in the regulations, while considering the statutory appeal and therefore, there is a failure to exercise the jurisdiction vested in them . For the abovesaid reasons, he prayed for intervention and set aside the impugned orders. 7. The respondents have filed a detailed counter affidavit. Reiterating the same, Mrs.Sudharshana Sunder, learned counsel for the Board submitted that the petitioner had worked as Assistant Executive Engineer in RWS Sub Division, Coimbatore and during his tenure, he had committed certain irregularities in execution of Water Supply Scheme to Kandiyur, Pattanam, Mullapadi and Pallapatty. A discreet enquiry was conducted, which revealed that there was rock depth variation in the distribution system of Kandiyur Village and also in Pallapatty Village. In none of these cases, pre- measurement for rock classification was recorded in the M Book before recording the measurement for "hard rock". Check measurements for the works were made by the Assistant Engineer/Assistant Executive Engineer of the concerned sections, even before the date of execution of agreements. The total loss by way of boosted measurements was worked out to Rs.43,918.40/- . The works were not carried out properly and that records were also manipulated to suit the convenience of the contractor and the officials. In these circumstances, charges were framed against the petitioner in Board's Charges Memo.No.64095/Estt.(DP I)/97-13 dated 8.1.98. 8. Learned counsel for the Board further submitted that in respect of the third charge, the Enquiry Officer has found that the measurements/check measurements was done prior to the execution of the agreement. According to the Board, the correct procedure is that, as soon as the agreement is concluded, the materials required by the contractors should be supplied by the Assistant Engineers/Assistant Executive Engineers concerned and that relevant entries in the Day Book should be made and thereafter, work should have been started. This procedure was not followed and therefore, the Enquiry Officer has rightly held Charge No.3 as partly proved. 9. Learned counsel for the Board further submitted that all the points raised by the petitioner were properly considered by the Enquiry Officer and after analysis of the materials on record, held Charge No.3 as partly proved. As prima facie was noticed, the disciplinary authority had concurred with the findings of the enquiry officer and considering the gravity of the charge, the second respondent has imposed a punishment of stoppage of increment for one year with cumulative effect. She further submitted that a sum of Rs.11,721/- being the share of the financial loss to the Board, was also ordered to be recovered. In so far as the procedure for consideration of the appeal is concerned, she submitted the appeal preferred by the petitioner was placed before the Appeal Sub Committee and after due consideration, the Appeal Sub Committee, by its resolution No.17, dated 20.12.99, has recommended to the Board for rejection. Based on the Appeal Sub Committee's recommendation, the matter was placed before the Board for consideration. The Board in its Resolution No.5.18 dated 29.1.2000, accepted the recommendations of the Appeal Sub Committee and rejected the appeal of the petitioner and accordingly, confirmed the punishment. The procedure in disposing of the statutory appeal has been followed in accordance with the regulations. She further submitted that In the absence of any perversity in the finding or procedural defect in the decision making process, either by the disciplinary or appellate authority, there is no reason, warranting interference. 10. Learned counsel for the Board further submitted that the measurement/check measurement was done prior to the execution of the agreement. Therefore, he submitted that the finding of the enquiry officer, holding charge No.3 as partly proved, cannot be found fault with. On the question of applicability of the decisions of this Court relied on by the learned counsel for the petitioner in respect of the then Executive Engineer, in W.P.No.16290 of 2000 and W.A.No.2421 of 2003, learned counsel for the Board submitted that the orders passed by this Court are not applicable to the case of the petitioner, since the petitioner was one of the officers incharge to verify the actual measurements, which was recorded in the measurement book. It is also the case of the Board that the petitioner had not taken adequate care to verify as to whether any agreement was entered into between the parties and failed to follow the procedure to measure the "hard rock". According to the Board, the Assistant Executive Engineer is the person incharge of actual measurement. Since the entries showed that measurements were recorded prior to the signing of the agreement, the misconduct is proved and that the petitioner cannot be treated on par with the Executive Engineer. She further submitted that the Writ Petition has been filed belatedly and therefore, it should be rejected. In this context, learned counsel for the Board relied on a decision reported in Ruby Diamond v. Union of India, where the Supreme Court had declined to interfere with the order, declining to re-validate and endorse six licences, for import on the ground of inordinate delay in preferring the claim before the authorities and in filing the Writ Petition. For the above said reasons, she prayed for dismissal of the writ petitions Heard the learned counsel for the parties and perused the materials available on record. 11. The charges levelled against the petitioner on 08.01.1998, relate to the work, which was carried out in the year 1998, when the petitioner was working as Assistant Executive Engineer in RWS Sub Division, Coimbatore. The petitioner was alleged to have committed the following irregularities in the execution of Water Supply Scheme to Kandiyur, Pattanam, Mullapadi and Pallapatty villages, (i) Charge No.1: That he had recorded boosted measurements/check measurements and thereby caused a loss of Rs.43,918.40 to the Board. (ii) Charge No.2: That he had issued materials in excess of the actual requirements of the work and allowed the contractors to dispose off the materials in open marker and thereby caused a heavy loss to the Board. (iii) Charge No.3: That he had recorded measurement/check measurement prior to the date of agreement for the works at Pallapatty, Kandiyur, Pattanam and Mullupadi Water Supply Scheme and issued materials long before the signing of the work orders. 12. Perusal of the materials on record shows that the enquiry under Regulations 9(b) of the TWAD Board Employees (Discipline and Appeal) Regulation, 1972 was ordered Thiru.Palanisamy, Executive Engineer Mr.A.Vedanayagam and Thiru.S.Rathinavelu, (petitioner) the then Assistant Executive Engineers. Besides disciplinary action was taken against Assistant Executive Engineers also. The Superintendent Engineer, TWAD Board, Coimbatore Circle, Coimbatore, who enquired into the charges, found that the Charges 1 and 2 as not proved. In respect of Charge No.3, the enquiry officer has recorded that measurement/check measurement was done prior to the execution of the agreement. As per the instructions, for maintenance of measurement book, in TWAD Board Division, that as soon as the agreement is concluded, materials required by the Contractors would be supplied by the Assistant Executive Engineer and corresponding entries have to be made and thereafter, the work will be started. According to the enquiry officer, this procedure was not followed and therefore, he has held that the charge No.3 as partly proved. 13. It could be seen from the materials on record that the Executive Engineer was fully incharge of the transactions regarding the issue of materials before signing of the formal agreement. Water Supply works were required to carried out urgently, keeping in view of the need of the general public for drinking water, based on the relevant work order. Extraction of the charges levelled against the then Executive Engineer, Thiru.Palanisamy, would be relevant for the purpose of deciding as to whether the findings recorded by the enquiry officer with regard to Charge No.3 can be justified or not. The charges levelled against him are as follows: "(i) Charge No.1: That he had shown undue favour to a particular contractor, viz., Thiru.N.Murugan in awarding of words in RWS Division, Coimbatore. (ii) Charge No.2: That he had shown undue favour to a particular contractor, Thiru.N.Murugan, by allowing tenders to be issued to his benamies and awarded works to them without following code rules and procedure. (iii) Charge No.3: That he had neither cared to supervise nor to check the works executed in the Division properly and allowed the supervisory staff to record boosted measurement and check measurement unchecked and thereby caused to the Board. (iv) Charge No.4: That he had failed in his duty to check the work properly which resulted in the issue of materials in excess of actual requirements of the work and allowed the contractor to dispose of the materials in open market and thereby caused loss to the Board. (v) Charge No.5: That he had colluded with the contractor and allowed the A.E/A.E.E to record measurement and check measurements prior to the date of agreement for the works at Pallupatty, Kandiyur, Ganapathipalayam WSS, Gomangalam, Unjavalampatty, Bodipalayam WSS, Pattianam WSS and Mulluppadi and issued materials long before signing of the work order. 14. In respect of the Executive Engineer, the enquiry officer found that the first four charges as not proved. In respect of Charge No.5, the enquiry officer concluded that the Executive Engineer did not take timely action to conclude the agreement immediately, after the issue of the work order. The operative portion of the findings of the enquiry officer is as follows: "The statements of works in question executed by the delinquent officer (Assistant Executive Engineers and Assistant Engineers) along with details of Date of measurement/Check measurement, date of work order, Date of Agreement, M.Book reference are enclosed. From the satement, it will be seen that the measurement/Check Measurement was done prior to the date of Agreement but only after the issue of work order and the payment has been made to all works after concluding the Agreement. Executive Engineer has not taken timely action to conclude the Agreement immediately on issue of work order. It is an lapse on the part of the Executive Engineer for having failed to conclude the Agreement immediately. Issue of materials long before signing of the work order is not substantiated with reference to the records such as relevant Day books maintained by them. Hence, I am in opinion that Charge 5 stands partially proved." 15. As regards the findings of the enquiry officer, the Executive Engineer in his explanation, dated 07.05.1999, submitted that during the relevant period, viz., 1988-89, severe drought conditions prevailed in Coimbatore District as well as in other parts of Tamil Nadu and that the then District Collector in the course of review meeting directed him to complete all power pump water supply schemes on war footing basis, so as to avoid the sanction of schemes. According to the Executive Engineer, it was in those circumstances, the works were directed to be carried out, even though the draft agreement in respect of various works covered under Charge No.5 were prepared immediately and the fair agreement could be concluded only a little later. Not satisfied with the explanation, he was imposed with a penalty of stoppage of increment for one year with cumulative effect on 18.08.1999, intended to have effect on his pensionary benefits. Further, a recovery of Rs.11,721/- was also ordered by the Managing Director, Tamil Nadu Works Supply and Drainage Board, Chennai. The initiation of disciplinary action and the penalty was challenged in this Court. While considering the rival contentions of the contesting parties, this Court in W.P.Nos.16298 and 16711 of 2000, dated 19.03.2003, ordered as follows: "8. Having heard the learned counsel for either parties, I am of the view that the order impugned in this writ petition cannot be sustained. A perusal of the charges leveled against the petitioner in the charge sheet dated 08.01.1998 disclose that if at all any loss could have been caused to the Board that could have been inferred only if the misconduct and charge Nos. 3 & 4 had been proved to the satisfaction of the Enquiry Officer. In the case on hand, it is the categoric finding of the Enquiry Officer that charges 1 to 4 were not proved. Even as regards charge No. 5, the material portions of the charge viz., that the petitioner colluded with the Contractor and allowed the Assistant Engineer, Assistant Executive Engineer, to record measurement and check measurements prior to the date of agreement for carrying out the work at certain places, were found to be not proved. 9. As regard the other allegation that the petitioner issued materials long before signing of the work order, here again, the Enquiry Officer has given a finding that the said charge is also not proved. Though the Enquiry Officer would ultimately say that Charge No. 5 stands partially proved, what has been actually held by the Enquiry Officer was that the Petitioner has not taken prompt action to conclude the agreement immediately after the issue of the work order. In fact, the Enquiry Officer has given a further finding to the effect that though the measurement and check measurement have been done prior to the date of the agreement, payments were made to all the works only after the conclusion of the agreement. Thus a close reading of the findings of the Enquiry Officer disclose that no material act of misconduct has been found to have been established as against the petitioner. In fact the conclusion of the Enquiry Officer that the petitioner did not take prompt action to conclude the agreement immediately after the issue of the work order was not the specific charge against the petitioner. 10. In such circumstances, on a total analysis of the findings of the Enquiry Officer, it will have to be held that no act of misconduct as such was found to be proved against the petitioner. When that is the status of the findings of the Enquiry officer, as borne out by the records, the question is, how far the imposition of the punishment by the order of the third respondent dated 18.08.1999 can be sustained. A perusal of the order dated 18.08.1999 discloses that the third respondent has accepted the findings of the enquiry officer in toto without any deviation. In fact the specific expression used in the order is to the following effect. "In respect of charges 1 to 4, the disciplinary authority concurred with the findings of the enquiry officer and hold the charges as not proved. In respect of charge No. 5, the disciplinary authority accepts the findings of the Enquiry Officer and held that charge No. 5 as partially proved." 11. After saying so, the third respondent unfortunately went on to hold that considering the gravity of charge No. 5, award of punishment of stoppage of increment for one year with cumulative effect was warranted with a specific observation that the said punishment would affect his pensionary benefit and that was what intended to be done. Strangely, the third respondent went on to state that a sum of Rs. 11,721/- being the financial loss to the Board, the same should also be recovered from the petitioner. In the first place, when the findings of the Enquiry Officer even in regard to Charge No. 5 as observed above would not show that any act of misconduct as such was held to have been proved against the Petitioner, it will have to be held that the impugned order of the third respondent dated 18.08.1999 in awarding the severe punishment of stoppage of increment for one year that too with cumulative effect will have to be held to be an order passed without proper application of mind to the charges leveled against the petitioner insofar as charge No. 5 was concerned and to the extent to which the Enquiry Officer held that the petitioner could be held to have committed lapses in the course of discharge of duties as an Executive Engineer. As if that was not sufficient, the third respondent went further to hold that the imposition of the punishment was intended specifically with a view to affect the pensionary benefit of the petitioner. In such circumstances, inasmuch as the order of the third respondent dated 18.08.1999 has been passed without proper application of mind, the said order of punishment had no nexus to the trivial conduct of the petitioner which is said to have been committed by him as disclosed in the findings of the Enquiry Officer. The said order of the respondent is therefore, liable to be set aside. Even as regards, the other part of the order dated18.08.1999, in directing recovery of a sum of Rs.11,721/-, it will have to be held that the third respondent has committed grievous error in passing such order of recovery against the petitioner. As pointed out in the earlier part of my order, if at all any loss could be stated to have been caused to the respondents Board by the conduct of the petitioner, such an allegation can be found only in charge Nos.3 & 4 as framed in the charge sheet dated 08.01.1998. As regards the other charges and especially charge No. 5, there is absolutely no scope to even infer that even if that charge had been proved, no loss could have been caused to the Board. As matter of fact, the Enquiry Officer has given a clear finding that charges 1 to 4 were not proved against the petitioner. Even as regards charge No. 5, specific finding of the Enquiry Officer is that the payment in respect of various works were made, obviously to the contractors, after the conclusion of the agreement. There is no allegation against the petitioner that to what extent the monetary loss was caused to the Board. There was no material placed either before the enquiry officer or any reference in the impugned order dated 18.08.1999 to show as to how any loss was caused to the Board, much less, to