IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 31.08.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.940 of 2007 (T) O.A.No.1582 of 2000 V.Vajravelu ... Petitioner Vs. The Director of School Education, College Road, Nungambakkam, Chennai – 6. ... Respondent PRAYER: Writ Petition came to be numbered by transfer of O.A.No.1582 of 2000 on the file of the Tamil Nadu Administrative Tribunal praying to call for the entire records pertaining to the impugned order of recovery passed by the respondent in his proceedings Na.Ka.No.39716/C1-C3/97, dated 17.02.99 set aside the same and pass such further orders. For Petitioner :Mr.A.R.Nixon For Respondent :Mr.S.Gopinathan, AGP ORDER The petitioner had approached the Tamil Nadu Administrative Tribunal, by filing Original Application No.1582 of 2000, challenging the order passed by the respondent. The said Original Application was transferred to the file of this Court on abolition of the Tribunal and renumbered as W.P.No.940 of 2007. 2. The petitioner, after his appointment as B.T.Assistant (Maths) on 18.07.68 in Government Higher School, Kumpinipet, North Arcot Ambedkar District, his services were regularised with effect from 18.07.68 and thereupon, he was also awarded Selection Grade as well as Special Grade with effect from 18.07.78 and 18.07.88 respectively. Later on, he was served as B.T.Assistant upto 19.07.90 and transferred as Assistant Educational Officer, Nemili on 20.06.90. Again, he was transferred to Government High School, Sayanapuram as B.T.Assistant (Maths) as per Na.Ka.No.7063/D3/95, https://hcservices.ecourts.gov.in/hcservices/ dated 29.06.95 by the Chief Educational Officer, Vellore. After joining as B.T.Assistant in the same school on 05.07.95, he was further promoted as Head Master of the Government High School and thereafter, he was serving as Head Master of the Government High School, Kaverirajapuram, Thiruvallur District. While the petitioner was serving as Assistant Educational Officer, Nemili Panchayat Union, Nemili, Vellore District, one Middle School Head Master, namely, T.S.Vadivelu (died after retirement), Sendamangalam, Nemili Panchayat Union, obtained a judment from the Tribunal in O.A.No.582/90, dated 22.04.93, wherein, the Tribunal, set aside the reversion order dated 10.07.89 with a direction to the respondent to post the said T.S.Vadivelu as Head Master of Middle School in any one of the vacancies in Senthamangalam Panchayat Union with all attendant and consequential service benefits within a period of two months from the date of receipt of a copy of the said judgment. The said order copy was also communicated to the petitioner, who being the concerned authority to implement the said order as a pay drawing officer and as a duty bound officer, immediately on receipt of the said judgment from the D.E.O., passed an order posting the said Late T.S.Vadivelu as Middle School Headmaster on 09.06.93 and awarded all the consequential arrears of pay to him. The said Vadivelu, after receiving all the arrears of pay, on reaching the age of superannuation, retired from service on 31.10.93. Even after reaching the age of superannuation, he was given re-employment from 01.11.93 to 31.05.94. Subsequently, he was not in good health and therefore, he was relieved from the duty on 03.01.94 and thereafter, the said T.S.Vadivelu expired on 09.09.94. After 1 ½ years from the date of the death of the said T.S.Vadivelu, the respondent issued a charge memo dated 30.11.95 under Rule 17(b) of CCA Rules alleging that the petitioner had treated the period of reversion as duty period and awarded the arrears of pay and thereby caused loss to the Government. Thereafter, the enquiry officer found charge nos.1 and 2 as proved by dismissing the charge nos.3 and 4 as not proved. In the said charge nos.1 and 2, the petitioner was awarded with a punishment of stoppage of increment for 2 years with cumulative effect and a recovery of amount of Rs.2,11,826/- was also ordered. The said impugned order of imposing the double punishment by order dated 17.02.99 is under challenge. 3. Learned counsel appearing for the petitioner submits that the impugned order of punishment of stoppage of increment for 2 years with cumulative effect and a recovery of amount of Rs.2,11,826/- are contrary to law and hence, the same are liable to be set aside and it was further contended that no one was examined as witnesses to substantiate the alleged charges levelled against https://hcservices.ecourts.gov.in/hcservices/ the petitioner. Further, the correctness of the issuance of the charge memo was not properly considered either by the enquiry officer or by the disciplinary authority through proper enquiry and evidence and the said charge memo was only an empty formality and the procedure of the enquiry also was not properly followed and therefore, it was alleged that the impugned order suffered from infirmity and illegality and on that basis, prayed for setting aside the impugned order. 4. There was no counter filed on behalf of the respondent. However, learned counsel appearing for the respondent submits that one teacher by name, T.S.Vadivelu was reverted as Secondary Grade Assistant and posted at the Panchayat Union Elementary School, Asanallikuppam. The said T.S.Vadivelu did not join in the transferred school, instead, he stayed away from duty from 17.07.89 to 08.06.93 and rejoined duty on 09.06.93, when he was posted back as Middle School Headmaster with reference to the Tribunal's order, wherein, the Tribunal, by order dated 22.04.93, set aside the order of reversion passed by the District Educational Officer, Cheyyar. After the order passed by the Tribunal, the said T.S.Vadivelu was re-promoted as Headmaster of Panchayat Union Middle School. At that time, the petitioner, V.Vajravelu, was holding the office of the Assistant Educational Officer on 20.06.90. Since he was the concerned officer at the relevant point of time, he had passed an order treating the period away from the duty as duty period, for which, the said T.S.Vadivelu, was paid with all service benefits, which was later on noticed by the department. When the department had come to the conclusion that the said T.S.Vadivelu had received the salary by treating the non duty period as duty period, issued a notice to the petitioner, V.Vajravelu, stating that he has misused the power and caused financial loss to the Government. Subsequently, he was subjected to the disciplinary proceedings under Rule 17(b) of CCA Rules. Though four charges were framed against the petitioner, only charge nos.1 and 2 were established against him, while the rest of the charges were dropped. On the basis of the findings of the enquiry officer's report holding charge nos.1 and 2 are proved, he was inflicted with a punishment of stoppage of increment for 2 years with cumulative effect and further, the department also directed to recover the amount of Rs.2,11,826/-, which was duly enjoyed by the said Late T.S.Vadivelu. Since the disciplinary authority came to the conclusion that the petitioner, while serving as Assistant Educational Officer, without getting proper order either from the District Educational Officer or from the Higher Authorities, has wrongly jumped into the conclusion that the period of non duty period from 17.07.89 to 08.06.93 to be considered as duty period and he further passed an order allowing the said T.S.Vadivelu to enjoy the benefit of non duty period as duty period. In that view of the matter, the recovery order was passed against the petitioner https://hcservices.ecourts.gov.in/hcservices/ and on that basis, prayed for dismissal of the present writ petition. 5. Heard the learned counsel appearing on either side and perused the materials available on record. 6. The charge no.3 states that the said T.S.Vadivelu was reverted to the post of Secondary Grade Teacher from the Middle School Headmaster, but he did not join in the reverted post. Thereupon, the petitioner failed to implement the order passed by the Higher Officers. This charge made against the petitioner, though subsequently found not proved by the enquiry officer, the petitioner was subjected to disciplinary proceedings, without even giving any valid charge memo. The charge no.4 states that the said T.S.Vadivelu, Headmaster of the Panchayat Union Middle School, was running cinema theatre in the name of his wife and further he was also running a fire wood depot. But the petitioner as an Assistant Educational Officer, Nemili, failed to take disciplinary action against the said T.S.Vadivelu. A mere reading of these two charge nos.3 and 4 clearly indicates how vague the above said two charges made against the petitioner. However, the enquiry officer found the charge nos.3 and 4 are not proved. The first charge states that the petitioner, after receiving the order copy passed by the Tamil Nadu Administrative Tribunal, without taking prior permission from the higher officer and without understanding the direction given by the Tribunal, allowed the said T.S.Vadivelu to enjoy the benefit of four years from 17.07.89 to 08.06.93 non duty period as duty period and thereby, the petitioner caused financial loss to the Government. In fact, the said T.S.Vadivelu, Headmaster, after his reversion from the post of Headmaster to the post of Secondary Grade Teacher, went to the Tribunal and obtained stay order. Subsequently, the Original Application filed by the said T.S.Vadivelu in O.A.No.582/90, was allowed by order dated 22.04.93. Therefore, the said T.S.Vadivelu was reinstated as Headmaster. Even after reaching the age of superannuation, he was given re- employment from 01.11.93 to 31.05.94. Subsequently, he was not in good health and therefore, he was relieved from the duty on 03.01.94 and subsequently, the said T.S.Vadivelu expired on 09.09.94. 7. The allegation is that the petitioner has not brought to the notice of the higher officials about the order passed by the Tribunal and also allowed the said T.S.Vadivelu to receive the salary for the non duty period for about 4 years, when he has not https://hcservices.ecourts.gov.in/hcservices/ actually attended the duty in any post from 17.07.89 to 08.06.93, cannot be acceptable argument at all, for the simple reason that the Tribunal, while setting aside the reversion order, allowed the O.A.No.582/90, by order dated 22.04.93 and directed the respondent to pay all the attendant benefits to the said T.S.Vadivelu. Secondly, the petitioner, in his proceedings No.A1/351/93, dated Nil-July-1993, brought to the notice of the District Educational Officer, Cheyyar, specifically mentioning that whether the said T.S.Vadivelu should be given the benefit on the basis of the orders passed by the Tribunal, since the said T.S.Vadivelu had submitted an application requesting to implement the order of the Tribunal. Again, the petitioner, Assistant Educational Officer, in his subsequent letter dated 21.08.1993, brought to the notice of the District Educational Officer, whether the said Headmaster should be paid the benefits for the period from 17.07.89 to 08.06.93 as per the orders passed by the Tribunal. But, no reply has been sent by the District Educational Officer to the petitioner. Therefore, the petitioner, being the pay drawing officer and duty bound officer, on receipt of the application from the said T.SVadivelu with a copy of the order passed by the Tribunal, had complied with the order passed by the Tribunal, only after bringing to the notice to the District Educational Officer about the order passed by the Tribunal. Therefore, the allegation that the petitioner failed to bring to the notice of the higher officer about the order passed by the tribunal and thereby he has caused financial loss to the Government, is not legally sustainable. Secondly, the order of the Tribunal passed in O.A.No.582/90, dated 22.04.93, was communicated to the petitioner only by the District Educational Officer, Cheyyar, in his proceedings No.1773/A2/93, dated 10.11.93 with a specific direction to comply with the Tribunal order dated 22.04.93. Since the petitioner is the only competent authority to implement the said order of the Tribunal, he has rightly allowed to join the said T.S.Vadivelu as Middle School Headmaster as per the direction given by the Tribunal. 8. Further, on receipt of the direction from the District Educational Officer in his proceedings dated 10.11.93, directing the petitioner to comply with the order passed by the Tribunal, the petitioner, being the pay drawing officer and duty bound officer, had complied with the order passed by the Tribunal. Therefore, the respondent department should not have departmentally proceeded against the petitioner for having punctually carried out the implementation of the Tribunal order. It is the duty of the every officer to implement the order of the competent Court of law. That apart, a mere reading of the charge nos.1 and 2 does not require any initiation of the departmental proceedings against the petitioner for having implemented the order passed by the Tribunal, that too, after the direction issued by the District Educational Officer, in his proceedings dated 10.11.93, directing the petitioner to comply the order of the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 9. In that view of the matter, the impugned order passed by the respondent is liable to be set aside and accordingly, the same is aside. The present writ petition is therefore allowed. No Costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. rkm To The Director of School Education, College Road, Nungambakkam, Chennai – 6. 1 cc to Government Pleader, Sr. 65664 1 cc to Mr.A.R. Nixon, Advocate, Sr. 64441 W.P.No.940/2007 AKR (CO) kk 13/9 https://hcservices.ecourts.gov.in/hcservices/