IN THE COURT OF JUDICATURE AT MADRAS DATED 17.03.2011 CORAM THE HONOURABLE MR. JUSTICE R. SUDHAKAR W.P.No.6531 OF 2008 ...... A.S.N.Sivaswamy .. Petitioner -vs- 1 THE STATE OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF AGRICULTURE, FORT ST. GEORGE CHENNAI-9. 2 THE EXECUTIVE ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, WESTERN GHATS DEVELOPMENT SCHEME, DINDIGUL. .. Respondents Prayer: This petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records of the first respondent herein relating to his order in G.O. (3D) 113 dated 5.4.2007 and quash the same. For Petitioner: : Mr. A.R.L.Sundaresan Sr. Counsel for Ms. AL. Ganthimathi For Respondents: : Mrs. R. Anitha Addl. Govt. Pleader ORDER This writ petition is filed to call for the records of the first respondent relating to his order in G.O. (3D) 113 dated 5.4.2007 and quash the same. 2. The petitioner, while working as an Assistant Engineer in the Agricultural Engineering Department was entrusted with the https://hcservices.ecourts.gov.in/hcservices/ Development Scheme during the year 1987-88. In the course of discharging duties, the department found that he did not discharge his duty satisfactorily considering the work given to him. Therefore, in terms of Rule 17(b) of the Tamil Nadu Subordinate Services (Discipline and Appeal) Rules, following three charges were framed. " a) The petitioner had registered wrong measurements in the measurement book, which is against the actual work done. b) The petitioner has colluded and enabled to get payments in excess of the work actually done by entering wrong measurements in the measurement book. c) The petitioner has caused loss to the tune of Rs.3,688/- to the Government by entering wrong measurements in the book. " 3. This charge memo was issued on 15.7.1992 and the petitioner submitted his explanation on 30.1.1995 stating interalia that the measurement taken is long after the period of execution of the work. The area in question is subject to landslides and the work was done in urgency as per requirements. Hence, on the basis of belated inspection, the charges are framed and hence improper and bad. 4. Along with the petitioner, one Dharmaraja Perumal, Soil Conservation Officer and two other persons were proceeded Departmentally. On 26.11.1996, an enquiry report was submitted holding that all three charges were proved. On 13.12.2002, in respect of Dharmraja Perumal, against whom, the very same charges were framed, the respondents ordered recovery for a sum of Rs.3,530/- from his pension and he was allowed to retire. No other punishment was imposed on him. However, as against the petitioner, due to error in proceedings, after ten years from the date of charge memo and twenty years from the date of the incident, the Government passed the order imposing the punishment, for recovery of Rs.3,688/- and also imposed a punishment of stoppage of increment for three years without cumulative effect. Aggrieved thereby, the present writ petition has been filed. 5. Sri A.R.L.Sundaresan, learned Senior Counsel appearing for the petitioner primarily relies upon the findings of the Enquiry Officer in respect of one Dharmaraja Perumal and the order passed by the Government to state that two similarly placed persons have been treated differently in respect of the very same charges and there is no justification for imposing the higher penalty in the case of the petitioner. 6. It is further contended that in this case, the measurement was done in the year 1994 in respect of the work done https://hcservices.ecourts.gov.in/hcservices/ during the period 1987-88 and therefore, the issue had come stale and number of years have passed after completion of work that too, in an area prone to landslide. Further, while imposing punishment, the Government has taken different yardstick for the same set of charges. Assuming that both the officers were found guilty in respect of the above said three charges, the differentiation in punishment that has been made in the case of the petitioner is not justified. It shows arbitrariness and there is no special reasons stated to impose higher punishment which affects the petitioner's career for no intentional fault. 7. Mrs. R. Anitha, learned Additional Government Pleader appearing for the respondents reiterated the stand taken by the Department in the impugned proceedings and pleaded that the order impugned does not call for any interference or modification. 8. Considering the nature of the charges framed, the period during which the execution of the work done (i.e.) 1987-88 and the long time taken for verification (i.e.) 1994, the Government has chosen to impose penalty by way of recovery alone on Dharmaraja Perumal, the co-delinquent. Whereas, for the very same delinquency, the Government has imposed the punishment of stoppage of increment for three years without cumulative effect in addition to recovery as in the case of the other person and the order is passed after two decades i.e. in the year 2007. 9. Furthermore, no reason has been given for imposing an higher punishment when recovery order alone is imposed on Dharmaraja Perumal, the co-delinquent. This discrimination for the same delinquency does not appear to be just and reasonable. The delay in concluding the proceedings, which is not due to the fault of the petitioner, has caused the petitioner to suffer the enhanced punishment and the higher punishment is not on account of any extenuating or compelling reasons. The protracted proceedings by itself is an agony undergone. 10. The Court in exercise of its power under Article 226 of the Constitution of India can in rare and exceptional case interfere with the punishment vide the Apex Court decision in B.C.Chaturvedi – Vs. - Union of India reported in (AIR 1996 SC 484). Para 18 of the said decision is as follows:- " A review of the above legal position would establish that the disciplinary authority and on appeal, the appellate authority being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/ Tribunal, while exercising the power of judicial review, https://hcservices.ecourts.gov.in/hcservices/ cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/ Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereon." In this case, the delinquency against two persons is one and the same and only due to efflux of time, the petitioner suffered higher punishment. The incident in this case happened in the year 1987-88 and the punishment imposed after 20 years. In order to shorten the litigation and considering the earlier order passed on the other delinquent, this Court is of the view that the quantum of punishment alone can be interfered in the facts and circumstances of this case. 11. In such view of the matter, this Court is inclined to set aside that portion of the order imposing the punishment of stoppage of increment for three years without cumulative effect alone. The petitioner will be liable to pay the amount that is ordered to be recovered. This writ petition is allowed in part as above. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To 1 THE SECRETARY TO GOVERNMENT, STATE OF TAMIL NADU DEPARTMENT OF AGRICULTURE, FORT ST. GEORGE CHENNAI-9. https://hcservices.ecourts.gov.in/hcservices/ 2 THE EXECUTIVE ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, WESTERN GHATS DEVELOPMENT SCHEME, DINDIGUL. +1cc to Govt.Pleader Sr 19622 +1cc to Mrs.A.L.Ganthimathi, Advocate Sr 19096 VS(CO) km/20.4. WP No. 6531/2008 https://hcservices.ecourts.gov.in/hcservices/