In the High Court of Judicature at Madras Dated:9.06.2010 Coram: The Honourable Mr.Justice R.SUBBIAH Writ Petition No.26563 of 2009 and M.P.Nos.1 anf 2 of 2009 S.Samatharmam ..Petitioner ..vs.. 1. The State of Tamil Nadu, rep.by its Secretary to Government, Highways and Minor Ports Department, Fort St.George, Chennai-9. 2. The Chief Engineer (General), Highways, Chepauk, Chennai-5. ..Respondents Writ petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certilorarifed Mandamus, to call for the records connected with G.O.(3D) No.167, Highways (HR.1) Department, dated 7.8.2002 and Letter No.13885/HK1/2007-13, Highways and Minor Ports Department, dated 26.8.2009 passed by the 1st respondent and quash the same and direct the respondents to include the name of the petitioner in the panel for promotion to the post of Assistant Divisional Engineer for the year 2000-2001 and promote the petitioner as Assistant Divisional Engineer with all consequential benefits such as the further promotion as Divisional Engineer, etc. For Petitioner : Mr.P.Jayaraman, Senior Counsel for Mr.G.Elanchezhiyan For Respondents : Mr.P.Subramanian, A.G.P., ORDER Challenging the G.O.(3D) No.167, Highways (HR.1) Department, dated 07.08.2002 and also the Letter dated 26.8.2009 passed by the https://hcservices.ecourts.gov.in/hcservices/ 1st respondent, the present writ petition has been filed and also for a direction to the respondents to include the name of the petitioner in the panel for promotion to the post of Assistant Divisional Engineer for the year 2000-2001 and promote him as Assistant Divisional Engineer with all consequential and further promotional benefits. 2. According to the petitioner, he was selected through the Tamil Nadu Public Service Commission and was appointed as Assistant Engineer, Highways Department, on 19.11.1981 and was also promoted as Assistant Divisional Engineer on 04.04.2005. After working in various stations, he was transferred and posted as Assistant Divisional Engineer, Tamil Nadu Sector Project, Ramanathapuram. While the petitioner was working as Assistant Engineer in Highways Department, a Charge memo, containing 11 charges, was issued by Memo No.10631//Con.II/95-7 dated 30.06.1997 by the 2nd respondent-Chief Engineer, Highways and Rural Works, Chepauk, Chennai, calling for his explanation with regard to those charges. The petitioner submitted his explanation and subsequently, an enquiry officer was appointed and after completing the enquiry, the enquiry officer submitted his report with a finding that among 11 charges, charges 1,2,4,5,9,10 and 11 were proved and other charges were not proved. Thereafter, the punishing authority issued a memo along with the said enquiry report and called for his further explanation with regard to the enquiry report within 15 days and he also submitted his further explanation. Subsequently, the 1st respondent has imposed the punishment of Censure against the petitioner for the proved charges, by his impugned G.O., dated 07.08.2002. In the meantime, the petitioner was due for promotion to the post of Assistant Divisional Engineer in the panel for the year 2000-2001, but his name was not considered by the Government because of the pendency of the charges and the currency of punishment. Thereafter, the petitioner was promoted as Assistant Divisional Engineer on 04.04.2005 only on completion of the punishment of currency. In a similar case, even though the punishment was in currency, the Government had ordered retrospective promotion to one Palaniyandi, Ramachandran and Ramalingam, who were imposed minor punishment of stoppage of increment and the same was in currency, as Assistant Divisional Engineer on par with their junior with due seniority and with all benefits vide G.O.Ms.No.344, Public Works (HK-1) Department dated 09.05.1995. Based on the same, the petitioner has also preferred a representation to the Government to consider his case for promotion as Assistant Divisional Engineer on par with his juniors and fix his seniority accordingly, in the light of G.O.Ms.No.344, Public Works (HK-1) Department dated 09.05.1995 as well as G.O.Ms.No.157, Public Works (H1) Department dated 25.02.1996 in respect of other employees. Since there was no response, he filed W.P.No.24707 of 2007 to issue a direction to the respondents to consider his representation and pass orders in the light of G.O.Ms.No.344 dated 09.05.1995, G.O.Ms.No.157 dated 25.02.1996 and also the order passed in W.P.No.22975 of 2005, wherein this Court https://hcservices.ecourts.gov.in/hcservices/ ordered retrospective promotion to the individual and directed the respondents to promote him on par with his juniors, and the writ petition was ordered as prayed for. After passing the said order in W.P.No.24707 of 2007 dated 21.07.2007, the 1st respondent has passed the impugned order dated 26.08.2009, rejecting the claim of the petitioner on the ground of currency of punishment. Since the same is illegal, the present writ petition has been filed to quash the same. 3. Learned Senior Counsel for the petitioner submitted that the charges levelled against the petitioner were relating to certain irregularities committed by the petitioner while discharging his duty and they were not serious in nature. There was no serious allegation as if the petitioner got enriched himself by committing the said irregularities. Since there was also no allegation of corruption or misappropriation levelled against the petitioner, the respondents ought to have charged him under Rule 17(a) of Tamil Nadu Civil services (Discipline and Appeal) Rules. In order to prevent the petitioner's chance of promotion, the said charges were framed under Rule 17(b) of the said Rules and punishment of Censure was imposed on him. Further, the punishment of Censure imposed on the petitioner would show that the charges levelled against the petitioner are minor in nature. Hence, the impugned orders are liable to be set aside. 4. Moreover, the charges levelled against the petitioner were pertaining to the year 1992 whereas the charge memo was issued only in the year 1997 and hence, there was a delay of five years in issuing the charge memo. Further, the enquiry officer submitted his report only on 20.04.1999 and thereafter, the punishment was imposed by the impugned G.O.dated 07.08.2002. No explanation was given by the respondents for this delay. Therefore, on this ground also, the impugned orders are liable to be quashed and consequently, a direction should be given to the respondents to promote the petitioner with all consequential benefits and further promotional benefits. In support of these contentions, the learned senior counsel relied upon a judgment reported in (2008) 5 MLJ 350 (SUBRAMANIAN .. vs.. GOVERNMENT OF TAMIL NADU, REP.BY ITS SECRETARY, CHENNAI AND OTHERS) and BASANTI PRASAD ..vs.. THE CHAIRMAN, BIHAR SCHOOL EXAMINATION BOARD AND OTHERS (AIR 2009 SC 3162). 5. Per contra, the learned Additional Government Pleader submitted that though the punishment of Censure was imposed in the year 2002, the petitioner has chosen to challenge the same by way of the present writ petition, after a period of seven years. Therefore, the various submissions made by the learned counsel for the petitioner with regard to the delay in issuing the charge memo cannot be gone into at this stage. 6. By way of reply, the learned senior counsel for the petitioner , by inviting the attention of this court to the enquiry report, contended that no witness was examined to prove the charges https://hcservices.ecourts.gov.in/hcservices/ levelled against the petitioner. Therefore, the enquiry was conducted against the principles of natural justice. On that ground also, the impugned orders are liable to be quashed. Since the charges levelled against the petitioner were flimsy in nature, the framing of charges under Rule 17(b) is not correct and they ought to have framed the said charges only under Rule 17(a). Further, the learned senior counsel relied on G.O.Nos.344 dated 09.05.1995 and 157 dated 25.02.1996 and contended that in those cases, after the currency of punishment was over, the names of the delinquents were considered and promoted as Divisional Engineers on par with their juniors retrospectively, even though there was a punishment of stoppage of increment; but in this case, only the punishment of censure was imposed. Therefore, the relief of the petitioner could be granted. 7. Heard the learned counsel for both sides and perused the materials available on record. 8. It is the contention of the petitioner that there was an inordinate delay of five years in issuing the charge memo. The charge memo dated 30.06.1997 was issued for the occurrence that had taken place in the year 1992. Moreover, all the charges levelled against the petitioner were only with regard to certain irregularities committed by him while carrying on the duty. Under such circumstances, the respondents ought not to have issued the charge memo under Rule 17(b). It is the further contention of the petitioner that the very factum that the imposition of Censure would show that the allegations were minor in nature. Therefore, when there is inordinate or unexplained delay on the part of the respondents in the enquiry proceedings, the impugned G.O.dated 07.08.2002 is liable to be quashed. Per contra, it is the contention of the learned Additional Government Pleader that the punishment was imposed in the year 2002 by G.O.(3D)Ms.No.167 dated 07.08.2002 and now it has reached the finality and at this length of time, the impugned G.O.cannot be challenged. 9. After hearing the arguments advanced by both sides, I find some force in the submission made by the learned additional Government Pleader. It is not in dispute that the impugned G.O.was issued in the year 2002 and if the petitioner was aggrieved, he ought to have challenged the same at the relevant point of time by raising all the grounds. Therefore, I am of the considered view that the prayer to quash the impugned G.O.cannot be entertained at this stage since the punishment was made as early as 2002. 10. Now, the next question is, whether the petitioner is entitled to the consequential prayer. The facts available in this case would show that the charges levelled against the petitioner were only with regard to the negligence committed by him while discharging his duty. Under such circumstances, the authorities ought to have framed the charges under Rule 17(a) and not under Rule 17(b). https://hcservices.ecourts.gov.in/hcservices/ Moreover, a reading of charges would show that there was no serious allegation against the petitioner, such as illegal gratification or misappropriation of Government funds or he discharged his official duties with a dishonest motive, his prayer to include his name in the panel for promotion to the post of Assistant Divisional Engineer on par with his juniors, could be considered. 11. In this regard, a reference could be placed on the unreported judgment of this Court relied upon by the learned counsel for the petitioner dated 08.12.2006 made in W.P.No.22975 of 2005 (KALIYAPERUMAL ..vs.. STATE OF TAMIL NADU, HIGHWAYS DEPARTMENT AND OTHERS), wherein para 3 and 4 are extracted hereunder: "3. In this writ petition, learned counsel for the petitioner submitted that when there is no oral evidence or documentary evidence and when the petitioner has offered proper explanation that during the period, he was working only for one year and therefore, the responsible cannot be fixed on him alone and because of the use of poor quality bricks and substandard materials cracks have occurred in the three houses. Further, he strongly relied on a similar situation in which the Government has passed order in G.O.Ms.No.344, Public Works (HK-1) Department dated 9.5.1995 and G.O.Ms.No.157, Public Works (HK-1) Department, 25.2.1996 and also the order of the Division Bench in W.P.No.19144 of 2004, dated 7.12.2004, wherein the Division Bench dealt with regard to the framing of the charges under rule 17(b) of the Rules. As per the instruction by the Government the charges framed against the petitioner do not come under (1) and (2) of the aforesaid Guidelines. Whether the action of the respondent No.1 would amount to irregularity or negligence in the discharge of his official duties, there is no whisper in the charge memo or to the effect that it was with any dishonest motive. Moreover, it is not the contention of the counsel for the petitioner that there was any dishonesty on the part of respondent No.1 in the discharge of his official duties. Having regard to the peculiar facts and circumstances of the case, we are not inclined to interfere with the order of the Tribunal. Even after applying the G.O.and the judgment to the facts and circumstances of the case read with guidelines issued by the Government, the charge levelled against the petitioner in one of the guidelines, action can be initiated only when there is irregularity or negligence in the discharge of his official duties with a dishonest motive. 4. On the other hand, the negligence alone is attributed. Therefore, relying the judgment of the Division Bench and instructions to frame charges under Rule 17(b) and charges cannto be framed under Rule 17(b). Therefore, the entire exercise of the respondents framing the charges contrary to the Government guidelines and imposing the punishment is https://hcservices.ecourts.gov.in/hcservices/ liable to be set aside and the other direction being to promote the petitioner from the date of his junior being promoted with all consequential benefits. We consider it appropriate to direct the respondents to promote the petitioner and to give all consequential benefits from the date of his juniors. The writ petition is accordingly allowed. No costs". 12. In the other unreported judgment, namely, W.P.No.3558 of 2004, this Court has passed the following order, by its order dated 05.09.2006. "9. As far as the second limb of the prayer sought for by the petitioner for promotion to the post of District Revenue Officer on par with his juniors and with consequential benefits, is concerned, we feel that the punishment of stoppage of increment for a period of six months without cumulative effect is only a minor punishment as per Tamil Nadu Civil Services (Discipline and Appeal) Rules, applicable to the Tamil Nadu Government servants and the charges could have been framed under Rule 17(a) as they were not serious in nature. Admittedly, the charges were framed against the petitioner for certain lapses and lack of supervision and no other allgations such as, illegal gratification, committal of penal offence, etc. which would come under Rule 17(b) were levelled against the petitioner. The Government has given specific guidelines with regard to framing of charges under Rule 17(a) and 17(b). The guidelines are to the following effect: "Guidelines for deciding whether charges may be framed under Rule 17(b): (1) Cases in which there is reasonable ground to believe that a penal offence has been committed by a Government servant but the evidence forthcoming is not sufficient for prosecution in a Court of law, e.g., (a) possession of assets disproportionate to the known sources of income; (b) obtaining or attempting to obtain illegal gratification; (c) misappropriation of Government property, money or shares; (d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate, etc., (2) Falsification of Government records; (3) irregularity or negligence in the discharge of official duties with a dishonest motive. https://hcservices.ecourts.gov.in/hcservices/ 10. Therefore, as per the above said guidelines also, as stated earlier, the charges framed against the petitioner would not come under Rule 17(b), but only under Rule 17(a). However, since the petitioner was imposed punishment on framing charges under Rule 17(b) which is a bar for consideration of promotion, he has been deprived of the promotion to the next cadre. Therefore, we are of the view that the charges should have been framed under Rule 17(a)and not under Rule 17(b). Therefore, in view of the Guidelines as stated in Letter No.248 issued by the Government of Tamil Nadu, dated 20.10.1997 which have been reconsolidated in the recent Letter No.1882/S/2005-2, dated 7.10.2005 issued by the Government of Tamil Nadu, the claim of the petitioner can be considered for further promotion..." 13. In (2008)5 MLJ 350 (cited supra), this Court has held as follows: "When the employee is imposed upon a punishment of stoppage of increment for two years without cumulative effect which could be construed only as a minor punishment, he could not be denied further promotion solely based on the same, if he is otherwise fit for promotion". 14. A reading of the said judgments would show that based on the imposition of minor punishment, promotion cannot be denied, if he is otherwise fit for promotion. Further, I find that in the said cases there was a punishment of stoppage of increment and in the present case, the punishment of Censure was imposed. Following the dictum laid down in the said decisions, I am of the view that since the allegations levelled against the petitioner were not serious in nature, particularly the proved charges were only minor in nature, the claim of the petitioner can be considered by the 1st respondent on par with his juniors and as such, the second prayer sought for by the petitioner is allowed. For the reasons stated above, the writ petition is partly allowed. The impugned G.O.dated 07.08.2002 passed by the first respondent is confirmed. However, the first respondent is directed to consider the claim of the petitioner for promotion to the post of Assistant Divisional Engineer, if he is otherwise eligible, on par with his juniors. No costs. Consequently, connected M.Ps.are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gl To 1. The Secretary to Government, State of Tamil Nadu, Highways and Minor Ports Department, Fort St.George, Chennai-9. 2. The Chief Engineer (General), Highways, Chepauk, Chennai-5. 1 cc To Mr.G.Elanchezhian, Advocate, SR.41122 1 cc To The Government Pleader, SR.41759 Order in W.P.No.26563 of 2009 RL(CO) sra 17/6/2010 https://hcservices.ecourts.gov.in/hcservices/