IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.07.2011 CORAM THE HONOURABLE Mr.JUSTICE D.HARI PARANTHAMAN W.P.Nos.16703 and 17503 of 2007 (O.A.Nos.4100 of 2003 and 240 of 2004) T.Sundaram ...Petitioner in W.P.No.16703/2007 R.Vijayaramarajan ...Petitioner in W.P.No.17503/2007 Vs 1.The Conservator of Forests, Dharmapuri Circle, Dharmapuri. 2.The Soil Conservation Officer, Mettur Soil Conservation Scheme, Dharmapuri. ...Respondents in both WPs' PRAYER in W.P.No.16703 of 2007: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.4100 of 2003 on the file of Tamil Nadu Administrative Tribunal, to call for the records of the first respondent relating to his Pro.No.16634/02/Po.2, dated 14.10.2003, quash the same and issue consequential directions to refund to the petitioner the amounts, if any, recovered from his pay. PRAYER in W.P.No.17503 of 2007: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.240 of 2004 on the file of Tamil Nadu Administrative Tribunal, to call for the records of the first respondent relating to his Pro.No.18634/02/Po.2, dated 14.10.2003, quash the same and issue consequential directions to refund to the petitioner the amounts, if any, recovered from his pay. For Petitioners : Mr.M.Ravi For Respondents : Mr.N.Inbanathan, Government Advocate (Forest) https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R On abolition of the Tribunal, the Original Applications in O.A.Nos.4100 of 2003 and 240 of 2004 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court and renumbered as W.P.Nos.16703 and 17503 of 2007. 2.The petitioner in W.P.No.16703 of 2007 and the petitioner in W.P.No.17503 of 2007 were employed as Foresters in Mettur Soil Conservation Scheme during the period 2000-2002. The petitioner in W.P.No.16703 of 2007 belongs to Ajjanahalli Section of Pennagaram Range of the Scheme, while the other petitioner was working as Forester in Dhonnakuttahalli. The Soil Conservation Officer, the second respondent herein was the overall in charge of the said Scheme. As far as Pennagaram Range is concerned, there was a Ranger by name Murugesan, who is the executing authority. These two petitioners are working as Foresters under him. The Seedlings were planted pursuant to the Tamil Nadu Afforestation Scheme Works in Mettur Soil Conservation Scheme Range. 3.The Conservator of Forest issued an order in C.No.1093/2002A1, dated 18.02.2002, constituting 38 Regional Monitoring Committees for 100% checking of the works carried out under Tamil Nadu Afforestation Project Scheme including water augmentation area during 2001-2002. 4. Accordingly, the Monitoring Committees under the leadership of one Manickam, District Forest Officer, IFF Division, Dharmapuri, assisted by one Ranger and 3 Foresters inspected the works carried out in Dhonnakuttahalli Village. They found that there was a shortage of seedlings planted in that area and thereby, there was a loss of Rs.56,347/- to the Government. Based on the said report of Manickam Committee, the second respondent issued a show cause notice dated 20.05.2002 to Mr.Murugesan/Ranger asking him to show cause as to why a sum of Rs.56,347/- should not be recovered from him. 5.Apart from the Manickam Committee, the Assistant Conservator of Forest also inspected the works carried out in Dhonnakuttahalli Village and he submitted his report to the Government. In the said report, it was stated that 1000 of seedlings were not planted, though it was accounted for. Thereafter, the second respondent constituted another Committee for 100% checking of the seedlings planted at Dhonnakuttahalli Village, by proceedings dated 29.08.2002. The Committee was headed by one C.Jaganathan, Forest Ranger, Dharmapuri, and two other Rangers and three Foresters were the members of the committee and they have to give the report. They gave a report on 06.09.2002. https://hcservices.ecourts.gov.in/hcservices/ 6.Based on the said report, a charge memo dated 06.09.2002 was issued by the second respondent to the petitioners. It was alleged that the petitioner admitted during the preliminary enquiry conducted on 19.08.2002, before the second respondent, that they caused loss to the Government. It was stated that there was a loss of Rs.2,71,113/- to the Government and the loss was suffered due to the commission and omission of the petitioner in W.P.No.16703 of 2007. Similarly, it was stated that there was a loss of Rs.3,11,168/- to the Government by the petitioner in W.P.No.17503 of 2007. In the charge memo, the petitioners were directed to remit the said amount. It was also stated that they can also peruse the documents, if they so desire. 7.The petitioner in W.P.No.16703 of 2007 submitted his explanation on 24.09.2002 and the petitioner in W.P.No.17503 of 2007 submitted his explanation on 29.08.2002, denying the allegations. It was stated that they were not responsible for any shortage in planting the seedlings and the Ranger alone was responsible for the same. They requested the respondents to furnish the documents and the details of the same were mentioned in the explanation. Apart from the Ranger, it was pointed out that the second respondent is also responsible for the shortage in the seedlings. 8.While so, the impugned order dated 14.10.2003 was passed by the first respondent relying on the statement made by the petitioners during the preliminary enquiry before the Soil Conservation Officer, on 19.08.2002. In the case of petitioner in W.P.No.16703/2007, an order was passed for recovery of Rs.2,71,113/- in 68 installments. In the case of the petitioner in W.P.No.17503 of 2007, an order of recovery of Rs.3,11,168/- was passed and he was directed to pay the said amount in 45 installments. Aggrieved by the said order, the petitioners have filed Original Applications before the Tamil Nadu Administrative Tribunal, Chennai, praying to quash the orders of the first respondent. 9.The respondents filed reply affidavit refuting the allegations. According to the respondents, the petitioners admitted their lapses in the statements made before the second respondent on 19.08.2002 and therefore, the recovery was justified and as such, there is no infirmity in passing the order of recovery. 10.Heard the submissions made by Mr.M.Ravi, learned counsel for the petitioner and Mr.N.Inbanathan, learned Government Advocate (Forest) for the respondents. 11.The first respondent constituted 38 Regional Monitoring Committees for 100% checking of the works carried out under the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Afforestation Project Scheme. Accordingly, one of the committees headed by Manickam inspected the Dhonnakuttahalli Village and found that there were shortage in planting the seedlings. The said report further states that the Ranger alone was responsible for the shortage of seedlings. Based on the report of the Committee, the second respondent issued the show cause notice dated 20.05.2002 to Mr.Murugesan, Forest Ranger, Pennagaram, asking him to pay an amount of Rs.56,347/- towards the loss caused due to the shortage in seedlings. It is stated that the said Murugesan also paid the same. 12.Later, the Assistant Conservator of Forest inspected the Project at Dhonnakuttahalli Village and gave his report. As per the report of the Assistant Conservator of Forest, the shortage seems to have been much more. The said Murugesan objected the report. However, the said report is not placed before this Court. It is admitted that the Assistant Conservator of Forest conducted an enquiry and submitted his report to the higher authorities. It is not known as to what were the findings of the Assistant Conservator of Forest and the persons whom he held as responsible for the loss. 13.While so, the second respondent seems to have conducted some preliminary enquiry on 19.08.2002 and recorded statements from various persons. According to the respondents, the petitioners admitted their lapses and they are responsible for shortage in the seedlings. 14.Based on those statements made before the second respondent on 19.08.2002, a charge memo was issued to the petitioners, in Na.Ka.No.156/2002, dated 20.05.2002, under Rule 17(a) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. However, the same was cancelled and another charge memo dated 06.09.2002 was issued to the petitioners under Rule 17(a) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, based on the statements made by the petitioners, before the second respondent in the preliminary enquiry. In the charge memo, the petitioner in W.P.No.16703 of 2007 was held to be responsible for the loss of Rs.2,71,113/- and the petitioner in W.P.No.17503 of 2007 was held to be responsible for the loss of Rs.3,11,168/-and the petitioners were asked to submit their explanations. 15.The petitioner in W.P.No.16703 of 2007 submitted his explanation on 24.09.2002 and the petitioner in W.P.No.17503 of 2007 submitted his explanation on 29.09.2002. It is categorically stated that they were in need of the documents that were mentioned in the explanations. They also requested for an enquiry and sought examination of the persons, whose names were given in the explanations. But, the first respondent passed the impugned order dated 14.10.2003, without furnishing the documents as requested by the petitioners and https://hcservices.ecourts.gov.in/hcservices/ without holding an enquiry. The relevant passage of the impugned order in W.P.No.16703 of 2007, relating to the request of the petitioner is extracted hereunder: "jpU.o.Re;juk;/ tdth; Fw;wj;jhspid 17.09.2002y; bgw;Wf;bfhz;Ls;shh;. Fw;wj;jhSf;F rkhjhdk; bjhptpf;f Mtz';fs; ghprPypf;f 24.09.2002y; mDkjpnfhhp 23.09.2002 kw;Wk; 24.09.2002 Mfpa njjpfspy; Mtz';fs; ghprPyid bra;J bfhz;L 24.09.2002y; tprhuiz itf;fg;gl ntz;Lk; vd;Wk; tprhuiz Kof;fg;gl;l gpd;dnu rkhjhdk; rkh;gpf;f , aYk; vd ,ilf;fhy rkhjhdk; rkh;g;gpj;Js;shh;. " 16.The petitioner in W.P.No.16703 of 2007 gave his reply on 24.09.2002. It is stated in the impugned order that the petitioner inspected those documents on 23.09.2002 and 24.09.2002. In fact, the xerox copy of the original documents produced by the respondents reveals that the explanation was received by the respondents only on 24.09.2002 and 30.09.2002. Hence, the aforesaid passage in the impugned order shows the non application of mind to the facts in issue. 17. In the case of petitioner in W.P.No.17503 of 2007, there was no categorical reply as to the documents required by the petitioner, in the reply affidavit filed before this Court. It is stated that since it was the proceedings initiated under 17(a) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, the documents need not be furnished. It is also stated that no enquiry need to be conducted under Rule 17(a) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. Para 9 of the Reply Affidavit is extracted hereunder: "9.The averment of the applicant in Para 6(c) regarding initiating of proceedings against him under Rule 17(a) of the Tamil Nadu Civil Services (D & A) Rules is not proper and not correct. As per G.O.Ms.No.92, Environment and Forest Department, dated 09.03.93 any loss sustained to Government may be ordered to be recovered from the Government Servant by initiating proceedings under Rule 17(a) of the Tamil Nadu Civil Services (D & A) Rules. Though the applicant was not incharge of the section where the work was carried out, he was instructed to carryout the work in that area by the forest Ranger of Pennagaram, MSCS Range who is his immediate superior. It is his primary duty to obey the orders of his superiors. Further the applicant has executed the work, prepared vouchers for the works purportedly done and witnessed for the payment made to the labourers and contractors. Hence the applicant is responsible for the loss sustained to Government. With regard to supply of documents and enquiry of the applicant it is permissible if charge https://hcservices.ecourts.gov.in/hcservices/ sheet is issued under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules. In this case, charge sheet is issued under Rule 17(a) of Tamil Nadu Civil Services (D & A) Rules and Hence the question of supply of documents and enquiry of the applicant does not arise." 18. In my view, the aforesaid contention of the respondents are deserved to be rejected, whether it is a 17(a) proceedings or 17(b) proceedings. If a delinquent asked for documents that are relevant to the issue, the respondents could not simply reject the same, that too without assigning any reasons. Therefore, the impugned order passed by the first respondent is in violation of principle of natural Justice. 19.When the petitioners sought for an enquiry, the said request was not conceded. The reply of the respondents is that the proceedings were initiated under Rule 17(a) of the Tamil Nadu Civil Services (D & A) Rules and therefore, no enquiry need be conducted. Such a contention of the respondents is not acceptable to this Court. There is no bar under Rule 17(a) of the Tamil Nadu Civil Services (D & A) Rules for conducting an enquiry. Whether an enquiry, is required or not, depends upon the facts of the case. Particularly when the delinquent seeks for an enquiry, the Authority should consider as to why the request would not be acceded to. In the event of not conducting an enquiry, the Authority is bound to give reasons for not holding an enquiry. In this case, when the statements made in the preliminary enquiry was disowned by the petitioners, the impugned order was passed based on the preliminary enquiry. Hence, it is necessary to hold an enquiry. But they did not choose to hold any enquiry. 20.Furthermore, the learned counsel for the petitioners has relied on G.O.Ms.No.92, Environment and Forest Department, dated 03.02.1993, wherein the second respondent, Ranger, Forester and Forest Guard are held responsible for the loss caused to the Government. Para 3 of the said Government Order is extracted hereunder: "3.The Government have examined the question of fixation of definite responsibility at each level carefully and they are strongly of the view that according to section 142(2) of the Tamil Nadu Forest Department Code, the District Forest Officer and the Conservator of Forest should check measures atleast 25% and 10% respectively of the works done by the Rangers, the Government therefore direct that in cases of irregularities resulting in financial losses to the Government, recovery of excess or inadmissible items of expenditure be fixed in the following scale:- https://hcservices.ecourts.gov.in/hcservices/ District Forest Officer - 25% Ranger - 40% Forester and Forest Guard - 35%" 21.Further, the charge memo is said to have been issued based on the report of the Committees constituted by the second respondent to inspect the seedlings planted in the concerned area. The second respondent constituted the Enquiry Committee in the order dated 29.08.2002. But the charge memo relies on the alleged statement made by the petitioners during the preliminary enquiry, conducted by the second respondent on 19.08.2002, that is prior to the constitution of the Committee by the second respondent, in the proceedings dated 29.08.2002. The Manickam Committee found that the Ranger alone was responsible for the loss of Rs.56,347/- to the Government and Mr.Murugesan has also paid the said amount. These factors are not taken note of in the impugned order. 22.In view of the aforesaid reasons, the impugned orders dated 14.10.2003 are quashed and the writ petitions are allowed. The matter is remanded back to the first respondent to consider the matter afresh, by issuing fresh charge memos' based on the materials available on record and also taking into account G.O.Ms.No.92, Environment and Forest Department, dated 03.02.1993. The first respondent is also directed to issue charge memos and hold an enquiry and decide the matter within a period of six months, from the date of receipt of a copy of this order. 23.The learned counsel for the petitioner submits that the petitioner in W.P.No.16703 of 2007 retires on 31.07.2011 and the amount involved in this matter could be withheld against DCRG and the rest of the terminal benefits could be settled. Since the petitioner agrees for withholding of the amount of alleged loss, the first respondent is directed to take appropriate steps for settlement of all terminal benefits when the petitioner in W.P.No.16703 of 2007 retires on 31.07.2011, after withholding the amount of Rs.2,71,113/- till the disposal of the enquiry referred to above. It is stated that the petitioner in W.P.No.17503 of 2007 retired in the year 2007 and the amount was already withheld towards Gratuity and after the completion of the enquiry referred to above, the finality about withholding of the amount could be decided. https://hcservices.ecourts.gov.in/hcservices/ 24.Accordingly, these writ petitions are disposed of in the above terms. No Costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mps/TK To 1.The Conservator of Forests, Dharmapuri Circle, Dharmapuri. 2.The Soil Conservation Officer, Mettur Soil Conservation Scheme, Dharmapuri. +1cc to Special Government Pleader (Forest) Sr 45772 +2ccs to Mr.M.Ravi, Advocate Sr 45907 BKY(CO) km/1.8. W.P.Nos.16703&17503 of 2007 (O.A.Nos.4100 of 2003 &240 of 2004) https://hcservices.ecourts.gov.in/hcservices/