IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.09.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NOS.44049, 45604 AND 46737 OF 2006 (O.A.NOS.5177, 5121 AND 5138 OF 2000) S.Santhiagu Irudhayaraj ... Petitioner in W.P.No.44049/2006 S.V.Rathinavelu ... Petitioner in W.P.No.45604/2006 S.Sahabudeen ... Petitioner in W.P.No.46737/2006 Versus The Assistant Director of Agriculture Pollachi, Coimbatore District. ... Respondent in all WPs' PRAYER: These Writ Petitions came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.Nos.5177, 5121 and 5138 of 2000 respectively from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the impugned order of the respondent in A/3869/99-(13), A/3869/99(14) and A/3869/99(12) respectively dated 03.05.2000 and quash the same. For Petitioners : Mr.P.Mohan Raj For Respondent : Mr.K.Balakrishnan Additional Government Pleader COMMON ORDER The Original Applications in O.A.Nos.5177, 5121 and 5138 of 2000 before the Tamil Nadu Administrative Tribunal are the present writ petitions. 2.The petitioners were working as Assistant Agricultural Officers at different places in Coimbatore District. A charge memo dated 12.08.1999 was issued to the petitioners under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules by the respondent alleging that the petitioners caused loss of Rs.38,457.50 in distribution of groundnut seeds at subsidized rates. It was alleged that there was no counter signature of the Agricultural Officers in the applications, wherein the petitioners recommended https://hcservices.ecourts.gov.in/hcservices/ for distribution of groundnut seeds. It was further alleged that documents were fabricated relating to the distribution of groundnut seeds. It was also alleged that the petitioners involved in misappropriation. The petitioners denied the allegations and explained that their duty ended as soon as they forwarded the applications recommending distribution of groundnut seeds at subsidized rates and it was for the Agricultural Officers to take follow up action. 3.While so, the impugned orders dated 03.05.2000 were passed holding that the petitioners were negligent in not verifying that the applications were not countersigned by the Agricultural Officers. Hence, orders were passed imposing the penalty of recovery of Rs.1000/-, Rs.2108/- and Rs.1125/- respectively from the pay of the petitioners. Hence these present writ petitions. 4.The respondent filed reply affidavit stating that the charge memo was issued based on the report of the Deputy Director of Agriculture, Coimbatore that there were irregularities in the distribution of groundnut seeds at subsidized rates. It is also stated in the reply affidavit that the petitioners were given opportunity in the enquiry and after enquiry, appropriate orders were passed, after complying with the Rules. 5.Heard the submissions made on either side and perused the materials available on record. 6.The learned counsel for the petitioners submit that though the charge memo was issued under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the respondent should have held an enquiry providing opportunity to the petitioner to establish his innocence, since serious allegations were made against them. The learned counsel relies on the following decisions of the Division Bench of this Court in this regard: 1. C.K.G.Nathan Vs. Assistant Commandant, Central Industrial Security Force and another reported in 2009 (5) MLJ 1121 2. P.Stanley Paulraj Vs. The State of Tamil Nadu, Rep. by the Secretary to Government and others in W.A.No.582 of 2009 (decided on 15.07.2010) 7.The learned counsel for the petitioners further submit that when the petitioners submitted their explanation denying the allegations, the respondent ought to have held an enquiry. The learned counsel also disputed the fact that an enquiry was held, as alleged in the reply affidavit of the respondent. https://hcservices.ecourts.gov.in/hcservices/ 8.On the other hand, the learned Government Advocate submits that as pointed out in the reply affidavit, already a preliminary enquiry was conducted and the recovery orders were passed only on finding that the petitioners acted in a negligent manner. 9.I have considered the submissions made on either side. 10.The charge memo was issued under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules based on some preliminary enquiry conducted by the Deputy Director of Agriculture, Coimbatore, as per the reply affidavit. Though the charge memo was issued under Rules 17(a), the allegations made are very grave in nature. The allegations are that the petitioners fabricated the records and misappropriated the funds and caused loss of Rs.38457.50. It was alleged that they failed to verify that the applications, wherein the petitioners recommended distribution of groundnut seeds, contained the countersignature of the Agricultural Officers. However, the petitioners categorically denied the allegations. According to the petitioners, as soon as they recommended for distribution of the groundnut seeds at subsidized rates, their work was over. According to them, it was for the Agricultural Officers to pursue thereafter and that therefore, the petitioners could not be charged for on the ground that there were no countersignature of the Agricultural Officers. 11.In the said circumstances, I am of the view that the respondent ought to have held an enquiry, particularly when the petitioners have disputed that it was not required to get the countersignature from the Agriculture Officers at the time of their recommendation for distribution of groundnut seeds. Furthermore, there were serious allegations made against the petitioners. 12.Under such circumstances, in my view, the judgment relied on by the learned counsel for the petitioner in C.K.G.Nathan Vs. Assistant Commandant, Central Industrial Security Force and another reported in 2009 (5) MLJ 1121 is directly on the point. Para 6 of the said judgment is extracted hereunder in this regard. "6.Whether such compliance of the principles of natural justice is also required in case where the rules do not contemplate an enquiry. In our opinion, even in case where the rules do not make a provision for enquiry in cases where minor penalties are imposed, nevertheless, the compliance of the principles of natural justice may be required and the non compliance may vitiate the order. Then again, it depends upon the facts of each case. In the event the charges are very minor and the order imposing minor https://hcservices.ecourts.gov.in/hcservices/ penalty merely refers to the charge without adversely imputing anything about the delinquent employee, the failure to conduct an enquiry will not vitiate the order. However, the same cannot be the general rule. In case if the charges are serious in nature and nevertheless the employer proceeds to follow Rule 37 and the order of punishment contains certain adverse imputation, remarks or even comments on the delinquent employee which may be considered as a stigma or which may likely to affect his reputation in the eye of public, certainly the failure to conduct enquiry by giving an opportunity to such delinquent employee would vitiate the order for non compliance of the principles of natural justice. This principle also applies to the case where charges are minor, nevertheless some imputations / observations are made against the delinquent. The test to decide whether an enquiry is required or not is not the mere fact of minor penalty is imposed, but the nature of charges, the nature of observations or findings of the disciplinary authority while passing final orders of penalty. While deciding the question as to whether the failure on the part of the employer to hold an enquiry in the absence of rules would by itself vitiate the order, the Court must keep the above principles in mind." 13.Further, the other judgment in P.Stanley Paulraj Vs. The State of Tamil Nadu, Rep. by the Secretary to Government and others in W.A.No.582 of 2009 (decided on 15.07.2010) is also applicable to the facts and circumstances of the case. Paras 4 to 7 of the judgment are extracted hereunder: "4.Learned Senior Counsel appearing for the appellant would contend that the appellant has submitted his explanation to the memo issued by the third respondent by stating that there was no shortage and, when there was a disputed question of fact, the respondents should have conducted an enquiry. According to the learned Senior Counsel, without conducting enquiry to prove the charges, the respondents had simply rejected the explanation of the appellant without any valid reason. Since the appellant was not given reasonable opportunity to defend his case, the order of recovery is liable to be set aside as it is against the principles of natural justice. Learned Senior Counsel would also contend that as per Rule 8 of Tamil Nadu (Discipline and Appeal) Rules, recovery is a punishment and it https://hcservices.ecourts.gov.in/hcservices/ can only be imposed by the competent authority and, in the present case, as per the Rules, the Chief Engineer is the competent authority and since the recovery punishment was imposed by the Executive Engineer, it is liable to be set aside on the ground of lack of jurisdiction. 5.We have gone through the impugned order as well as the documents filed on behalf of the appellant. The main contention raised by the learned Senior Counsel for the Appellant is that the charge levelled against the appellant was that there was shortage of 653 bags of cement. The appellant had given explanation to the charge sheet and since it was a disputed question, an enquiry should have been held by giving opportunity to the appellant to put forth his case and thereafter only the order of recovery should have been passed. Since the said order of recovery was passed without holding any enquiry, it is liable to be set aside as it was passed against the principles of natural justice. 6.In the reply affidavit filed by the respondents before the Tribunal no where it was stated that after holding enquiry the recovery came to be passed. In view of the above narrated facts, we are constrained to come to a conclusion that the recovery order was passed without holding any kind of enquiry. Therefore, we are of the considered opinion that the recovery order is liable to be set aside as it was passed without following the principles of natural justice. 7.Since we are setting aside the order impugned in the writ petition on the ground of failure to conduct enquiry, there is no necessity to consider the issue regarding competency." 14.Following the aforesaid judgments, the impugned orders in these writ petitions, are set aside, as no enquiry was conducted by the respondent before inflicting the recovery of Rs.38457.50 and the writ petitions are allowed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. TK https://hcservices.ecourts.gov.in/hcservices/ To The Assistant Director of Agriculture Pollachi, Coimbatore District. 1 cc to Government Pleader, Sr. 71767 W.P.NOS.44049, 45604 & 46737 OF 2006 (O.A.NOS.5177, 5121 & 5138 OF 2000) RSY (CO) kk 13/10 https://hcservices.ecourts.gov.in/hcservices/