IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2-1-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM W.P.No.11308 of 2006 N.Gopal .. Petitioner vs 1.The Government of Tamil Nadu Rep. By its Secretary Housing and Urban Development Department Fort St. George Chennai 600 009. 2.The Tamil Nadu Housing Board Rep. By its Managing Director Nandanam, Chennai 600 035. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus to call for the records of the respondents ending with the order of the 2nd respondent in proceedings No.DC4/14604/98-2 dated 7.10.2003 which is based on the order of the 1st respondent in G.O.(2D) No.200 Housing and Urban Development Department dated 29.9.2003 (copy of which was not served on the petitioner) and quash the same and consequently direct the respondents herein to forthwith release the entire terminal benefits without deducting any amount pursuant to the said order of the 2nd respondent dated 7.10.2003. For Petitioner : Mr.Duraisamy Senior Counsel for M/s.Muthumani Doraisami For Respondents : Mr.S.Gopinathan Additional Government Pleader for R1 Mr.R.Girirajan for R2 ORDER This writ petition has been brought forth by the petitioner seeking a writ of certiorarified mandamus to quash the order of the second respondent in proceedings No.DC4/14604/98-2 dated 7.10.2003, and to direct the respondents to release the entire terminal benefits without deducting any amount pursuant to the said order of the 2nd respondent. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner who was serving as Divisional Accountant from 1973 onwards, following a charge memo served upon him, was kept under suspension from 22.6.1998. The charge memo was served upon him on 6.7.1998, stating that firstly, while he was working as Divisional Accountant in Coimbatore Housing Unit in the year 1987, he has processed the cost finalisation proposal for Tatabad Scheme, Coimbatore, and got it approved at the level of Executive Engineer & Administrative Officer, Coimbatore Housing Unit itself instead of at Board's level, and thereby, he has committed grave irregularities in cost finalisation and thus violated the Rules, and secondly, because of the irregular and improper cost finalisation at a lesser cost without taking into account the land acquisition cases pending in the Court which had resulted in the payment of a sum of Rs.17,29,521/- by the Housing Board towards enhanced compensation, and the same could not be collected from the allottees to whom sale deeds were issued, and thereby the Board has sustained a monetary loss of Rs.17,29,521/-. On service of the charge memo, he placed a detailed reply. Admittedly, the first Enquiry Officer on enquiry, found that he was not guilty of the charges. The report submitted by the Enquiry Officer, was accepted by the Managing Director, and it was referred to the State for its approval; but, it was not approved. Instead, it came back. Then, the second Enquiry Officer was also appointed, and he also took the view that the charges were not proved, and it was dissented by the Managing Director. After calling for the representation, he was found guilty, and there was imposition of punishment of withholding of 1/3rd pension for a period of one year and also recovery of a sum of Rs.8,64,760.50 from him as if it was a loss that occasioned to the State. Then, the matter was referred to the State for confirmation. At that time, the said amount of Rs.8,64,760.50 was reduced to 50% namely Rs.4,32.381/-; but, the punishment of withholding of 1/3rd pension for one year was affirmed. According to the petitioner, he made representations which were also not considered, and finally, he preferred an appeal, and the same is yet pending before the first respondent State. 3.Advancing his arguments on behalf of the petitioner, the learned Senior Counsel would submit that the appeal is pending for a long time; that he has actually attained the superannuation on 30.6.1998; but, he was not allowed to retire; that he has not been given any monetary benefit to which he is entitled to, on retirement; that now the matter is pending for about nine years; that in the instant case, it could be seen that the scheme was executed in the year 1975-77; and that if to be so, the cost finalisation has also taken place in 1987; but, the charges were framed only in the year 1998 after a period of nine years. 4.The learned Senior Counsel would further add that in the instant case, the Board cannot come forward to state that it was not within its knowledge; that the delay of 9 years remained unexplained; and that under the circumstances, it is a fit case where the impugned order has got to be quashed. 5.Added further the learned Senior Counsel that both the charges have no merits at all; that the first charge is in respect of the finalisation of cost; that the petitioner was only the Divisional https://hcservices.ecourts.gov.in/hcservices/ Accountant; that he was not the final authority to finalise the cost; that it was only the Executive Engineer who was the authority to finalise it, and he has accordingly done; that so long as the petitioner was not the authority to finalise the cost, nothing could be proceeded against him; and that on that ground, it has got to be quashed. 6.The learned Senior Counsel would further submit that as regards the other charge that there was a loss of Rs.17,29,521/- that occasioned to the State, it was not so; that these amounts have got to be paid since the matters were pending in Court; that the said amount would represent only the interest and solatium and not any part of the compensation; that apart from that, in view of the pendency of the proceedings, the Board has no option than to pay; that according to the Board, sale deeds have been executed and have been issued to the respective allottees, and hence, the amounts could not be recovered; that it is pertinent to point out that the petitioner who was only the Divisional Accountant, was not the final authority or not competent to issue the sale deeds; but, the sale deeds have been given by the authority above; that under the circumstances, he cannot be found fault with; that even assuming that there was a loss, it cannot be attributed to the petitioner; and that under the circumstances, the impugned order has got to be quashed. 7.In answer to the above, it is contended by the learned Counsel appearing for the Housing Board that in the instant case, the appeal is yet pending; that it is true that originally, there was imposition of punishment of recovery of Rs.8,64,760.50 and also withholding of 1/3rd pension for a period of one year; that when it was placed before the State, the same was reduced to 50% i.e., Rs.4,32,381/-; that as far as the withholding of 1/3rd pension was concerned, it has been confirmed; that now, he has preferred a regular appeal, and the same is pending; that under the circumstances, without exhausting that remedy, the petitioner has approached this Court; that all these merits what are now urged before this Court, could well be urged before the appellate forum where the appeal is pending, and hence, the writ petition has got to be dismissed. 8.The Court paid its anxious consideration on the submissions made. 9.In the instant case, it is not in controversy that the petitioner was working as Divisional Accountant at Coimbatore Housing Unit during the year 1987. It is also not in controversy that he has also attained superannuation on 30.6.1998. Two charges were levelled against him one in respect of the finalisation of cost and the other alleging that there was a loss to the tune of Rs.17,29,521/- towards the enhanced compensation, and it could not be collected from the allottees to whom the sale deeds were issued, and thus, the Board has sustained the loss. At the outset, it is to be pointed out that the scheme in question was carried out during 1975-77, and the finalisation was made in the year 1987. In the case on hand, the charges were framed, as could be seen from the available materials, only on 20.6.1998, and thus, there was a delay of more than 9 years noticed. The petitioner was not the only authority who could finalise the proposal or finalise the cost. It was https://hcservices.ecourts.gov.in/hcservices/ not at his level, because he was only the Divisional Accountant. No satisfactory explanation is forthcoming as to how the delay has occasioned for a period of 9 years. Now, the contention put forth by the Housing Board that the scheme was carried out during 1975-77, and the finalisation has taken place in the year 1987, and for a period of 9 years, it was not noticed or remained unknown, and this has been proved, and thus, there was a delay of 9 years in coming forward with such a case, and the finalisation had been done without bringing it to the level of the Board cannot be accepted. The Board cannot be allowed to plead no knowledge about those proceedings and that too in a case like this. Once it was well within the knowledge of the Board and that too, the scheme has been carried out, and it was given effect, and sale deeds have been executed, and during the intervening period, no action has been taken, laches on the part of the Housing Board is noticed. 10.It is an admitted position that two Enquiry Officers were appointed, and those Enquiry Officers have given findings in favour of the petitioner that he was not found guilty. Then, it reached the hands of the Managing Director, and the matter was referred to the State. A dissenting view was taken, and thus, it was sent back. Now, the Managing Director has taken the dissenting view that he should be awarded the punishment of withholding of 1/3rd pension for a period of one year and recovery of Rs.8,64,760.50 from him. When the matter came to the hands of the Government by way of reference by the Board, the Government upheld the punishment of withholding of 1/3rd pension for a period of one year and also reduced the amount from Rs.8,64,760.50 to Rs.4,32,381/-. Thus, it could be seen that even the Government had considered that Rs.8 lakhs and odd could not be recovered from him. Had it been true that Rs.17 lakhs and odd was the loss actually sustained as per the charge, how it came to be reduced to 1/4th which, in the opinion of the Government, would suffice, remained unknown. 11.Now, at this juncture, it is to be pointed out that before imposing those punishments, he was not called upon to give any representation at all. That apart, in the instant case, when the charge is looked into, it would reveal that while he was working as Divisional Accountant in the Coimbatore Housing Unit, he was solely responsible for approval of the estimation of the cost. This Court is of the considered opinion that while number of persons are involved, the charge does not speak about that fact, and the enquiry was not conducted against all of them. The charges were levelled only against the petitioner and not against others. There was no joint enquiry at all. But, the materials would make it clear that the estimation of cost could not have been done only by the petitioner, but by others also. Under the circumstances, this Court is of the considered opinion that the fact that the delay was caused, and there was no joint enquiry against all the persons, and the opportunity for making the representation was not sufficiently given would suffice to quash the impugned order. It is true that the appeal has arisen, and it is pending for a period of nine years. This Court is of the view that since the petitioner has attained superannuation in the year 1998 itself, there is no meaning in keeping the appeal pending. The Government has no explanation to offer why the appeal by a person who has attained superannuation in the year 1998, is kept pending for a https://hcservices.ecourts.gov.in/hcservices/ period of nine years. In such circumstances, the pendency of the appeal, in the opinion of this Court, cannot be a reason for making any impediment in passing the order. Therefore, the impugned order has got to be quashed, and accordingly, it is quashed. 12.In the result, this writ petition is ordered as prayed for. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To: 1.The Secretary, The Government of Tamil Nadu Housing and Urban Development Department Fort St. George, Chennai 600 009. 2.The Managing Director The Tamil Nadu Housing Board Nandanam, Chennai 600 035. 1 cc To M/s.Muthumani Doraisamy, Advocate, SR.210. 1 cc To Mr.R.Girirajan, Advocate (TNHB), SR.239. 1 cc To The Government Pleader, SR.312 WP No.11308 of 2006 MS(CO) RVL 07.01.2008 https://hcservices.ecourts.gov.in/hcservices/