IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.11.2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.3637 OF 2007 (O.A.NO.5149 OF 2001) E.Thasiyan ... Petitioner VS. 1. The Conservator of Forests Thirunelveli Circle, Thirunelveli. 2. The Divisional Forest Officer Social Forestry Division Thirunelveli – 2. ... Respondents PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.5149 of 2001 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records of the respondents especially the 1st respondent relating to the impugned recovery order made in C.No.9713/99 E2 dated 25.01.2001 and quash the same as null and void, illegal and invalid and consequently direct the respondents to refund to the petitioner the amount recovered from his salary with other benefits entitled to by him. For Petitioner : Mr.A.Amal Raj For Respondents : Mr.N.Inbanathan Government Advocate (Forests) O R D E R The petitioner was working as a Forest Ranger. He was issued with a charge memo dated 30.04.1999 under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (shortly "the Rules") making certain allegations. On the ground that the petitioner did not submit his explanation on the charge memo, straight away the impugned order dated 25.01.2001 was passed by the first respondent ordering recovery of a sum of Rs.1,41,339/-. The petitioner challenged the same by filing Original Application in O.A.No.5149 of 2001 before the Tamil Nadu Administrative Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 2.The respondents filed reply affidavit refuting the allegations made by the petitioner. 3.In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.3637 of 2007. 4.Heard both sides. 5.It is true that for imposing minor punishments, namely, (i) censure (ii) fine (iii) withholding of increments and (iv) recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders etc., Rule 17(a) of the Rules does not contemplate holding of enquiry before imposing those punishments. But the second proviso to Rule 17(a) of the Rules contemplates that if a punishment to withhold increments of pay without cumulative effect for a period exceeding three years or to withhold increment of pay with cumulative effect for any period, the procedure laid down in rule 17(b) of the Rules shall be followed. 6.Rules 8 and 17(a) of the Rules are extracted hereunder: "Rule 8 – Penalties Part -III – Penalties and Procedures The following penalties may, for good and sufficient reason and as herein provided, be imposed upon every person who is a member of the civil service of the State and every person holding a civil post under the State specified in Rule 2, namely:- (i)Censure (ii)Fine (in the case of persons for whom such penalty is permissible under these rules), (iii)withholding of increments or promotion: Provided that in cases where the punishment of withholding of increment cannot be given effect to fully, the monetary value equivalent to the amount of increments ordered to be withheld for the unexpired period of the punishment shall be recovered from the person: Provided further that in cases of stoppage of increment with cumulative effect, the monetary value equivalent to three times the amount of increments ordered to be withheld may be recovered. https://hcservices.ecourts.gov.in/hcservices/ (iv)Reduction to a lower rank in the seniority list or to a lower post not being lower than to which he was directly recruited, whether in the same service or in another service, State or Subordinate or to a lower time scale, not being lower than that to which he was directly recruited, or to a lower stage in a time scale: Provided that in cases where the punishment of reduction to a lower stage in a time scale cannot be given effect to fully, the monetary value equivalent to the difference in emoluments as a result of reduction to such lower stage in the time-scale for the unexpired period of the punishment shall be recovered from the person. (v)Recovery from pay of the whole or part of any pecuniary loss caused to the State Government or the Central Government or to any Government Company or Organisation or Local Authority or to a Local Body, while on deputation, by negligence or breach of orders. (vi)Compulsory retirement. (vii)Removal from the Civil Service of the State Government. (viii)Dismissal from the Civil Service of the State Government. (ix)Suspension, where a person has already been suspended under Rule 17(e) to the extent considered necessary by the authority imposing the penalty. The penalties mentioned in items (i) to (iii), (v) and (ix) will be deemed to be minor penalties and those in (iv), (vi) to (viii) as major penalties. The penalties mentioned in items (vi), (vii) or (viii) as the case may be, shall be imposed on a Government servant for the violation of Rule 19 of the Tamil Nadu Government Servants' Conduct Rules, 1973. https://hcservices.ecourts.gov.in/hcservices/ 17(a). Procedure for Minor penalties In every case where it is proposed to impose on a member of a service or a person holding a civil post under the State any of the penalties specified in items (i), (ii), (iii), (v) and (ix) in Rule 8 or in Rule 9, he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the penalty is passed: Provided that the requirements of this sub-rule shall not apply where it is proposed to impose on a member of a service any of the penalties aforesaid on the basis of facts which have led to his conviction by a court martial or where the officer concerned has absconded or where it is for other reason impracticable to communicate with him: Provided further that, in every case where it is proposed, after considering the representation, if any, made by the Government servant, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay without cumulative effect for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, the procedure laid down in sub-rule (b) shall be followed before making any order imposing on the Government servant any such penalty." 7.In the present case on hand, withholding of increments of pay without cumulative effect for four years or withholding of increments for one year with cumulative effect would be very much less than the amount of Rs.1,41,339/- that was sought to be recovered. Therefore, in my view, if the amount of recovery exceeds more than the amount of increment cut for four years without cumulative effect or one year with cumulative effect, there should have been an enquiry. In these circumstances, the impugned order is liable to be quashed as the same was passed without holding any enquiry as contemplated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 8.Furthermore, for imposing the punishment of recovery from pay of the whole or pecuniary loss caused to the Government, the https://hcservices.ecourts.gov.in/hcservices/ respondents ought to have alleged in the charge memo that the loss was caused due to the negligence or breach of orders. No such allegation is made in the charge memo. 9.It is also now known as to how the amount of recovery was arrived at. 10.In my considered view, if the alleged loss is a substantial one and the recovery based on the same is also a substantial / enormous one, enquiry is necessary in view of the second proviso to Rule 17(a). 11.For the aforesaid reasons, the impugned order is quashed and the respondents are directed to refund the amount, if any, that was recovered from the petitioner, within a period of six weeks from the date of receipt of a copy of this order. 12.The writ petition is ordered in the above terms. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TK To 1. The Conservator of Forests Thirunelveli Circle, Thirunelveli. 2. The Divisional Forest Officer Social Forestry Division Thirunelveli – 2. 1 cc To The Special Government Pleader (Forests), SR.69780 W.P.NO.3637 OF 2007 (O.A.NO.5149 OF 2001) MS(CO) SRA(7/11/2011) https://hcservices.ecourts.gov.in/hcservices/