IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.18277 of 2008 and M.P.Nos.1 and 3 of 2008 V.Dorairaj ... Petitioner Vs 1.The Secretary to Government, Forest Department, Fort St.George, Chennai – 600009. 2.The Principal Chief Conservator of Forest, Forest Department, Panagal Building,Saidapet, Chennai. 3.The Chairman cum Managing Director, Tamil Nadu Tea Plantation Corporation Ltd., Coonoor, Nilgiris District. 4.The District Forest Officer, Nilgiri South Division, Uthagamandalam, Nilgiris District. ... Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, to call for the records relating to the G.O.(Ms)No.3, Environment and Forests (FR-9A) Department, dated 06.01.2003 and G.O.(3D) No.44, Environment and Forests (FR-1) department dated 12.12.2006 on the file of the first respondent and also a letter in Na.Ka.No.1204696 V2 dated 19.09.2008 quash the same and directing the third respondent to sanction the pensionary benefits as per letter No.8053/FR-1/2006-43 dated 29.08.2008 issued by the first respondent. (Prayer amended as per Court order dated 03.12.2008 in M.P.No.2/2008 in W.P.No.18277/2008 by AKJ) For petitioner : Mr.S.Kumaradevan For Respondents : Mr.S.N.Kirubanandam, Spl.G.P.(F) https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard both sides. 2. The petitioner has come forward with the present writ petition challenging the order of the Government in G.O.(Ms)No.3, Environment and Forests (FR-9A) Department, dated 06.01.2003 and G.O.(3D) No.44, Environment and Forests (FR-1) department dated 12.12.2006 and also a letter dated 19.09.2008 issued by the fourth respondent and after setting aside the same seeking for a direction to the third respondent to sanction the pensionary benefits as per the letter issued by the first respondent. 3.The petitioner had joined the Cinchona Department on 06.05.1957. He was promoted to the post of Superintendent in 1975. During 1982, he was suspended from service by the second respondent with reference to certain irregularities committed during the year 1978 and 1979. By an order dated 30.07.1983, a charge memo containing as many as 14 charges was given to the petitioner. On 30.11.1983, the petitioner gave his explanation to the said charge memo. 4. By an order in G.O.Ms.No.921 Forests and Fisheries Department dated 21.08.1987, the petitioner was removed from service. Thereafter, he moved the Tamil Nadu State Administrative Tribunal. The Tribunal set aside the removal order and directed the respondents to conduct a denova enquiry. Pursuant to the order, a denova enquiry was conducted by the second respondent during 1991. In the meanwhile, as the petitioner had attained the age of superannuation, by an order in G.O.(D).No.238 Environment – Forest Department dated 29.07.2002, he was permitted to retire under Fundamental Rule 56(1)(c) without prejudice to the disciplinary proceedings pending against him. He was also given a show cause notice dated 30.07.2002. The petitioner gave his explanation dated 21.08.2002. 5. In between, the petitioner had challenged the charge memo dated 30.07.1983 and another charge memo dated 29.12.1993 in O.A.Nos.431 and 1800 of 1994. The Tribunal by a final order dated 13.09.2001 disposed of the Original Applications rejecting his contention. It was held that there was no delay in conducting the enquiry. If the petitioner was aggrieved by the final order, he can challenge the same. 6. The petitioner once again moved this Court against the show cause notice in W.P.No.33404 of 2006. This Court gave a direction to the State Government to pass final orders. It was thereafter, by G.O.(3D)No.44 Environment-Forests Department dated 12.12.2006, final orders were passed holding that the petitioner was guilty of the charges and imposed the punishment of stoppage of full pension for a period of five years. This was done in consultation with TNPSC. Therefore, the petitioner's suspension https://hcservices.ecourts.gov.in/hcservices/ from 19.11.1992 to 31.12.1993 was also considered as substantive punishment. 7. The petitioner filed W.P.No.12169 of 2007 seeking to regularise the period of suspension. A direction was given on 01.10.2007 to settle the petitioner's retirement benefits within four weeks. Thereafter, the pension proposals were sent. The petitioner once again filed another writ petition being W.P.No.8205 of 2008 to furnish the particulars of his pension. The petitioner was informed that he had caused direct loss of Rs.82,233/- and indirect loss of Rs.3,90,339.57. It was also informed that an amount of Rs.7,34,849/- paid to the petitioner towards subsistence allowance for the period from 01.12.92 to 31.10.2006 was directed to be recovered from the terminal benefits. It is at this stage the petitioner has come forward to file the present writ petition with the prayer set about above. 8. When the matter came up on 30.07.2008, the learned Government Advocate (Forest) took notice. Subsequently, by an order dated 28.04.2009, the third respondent was directed to file a counter. The petitioner in the meanwhile had taken out an application to amend the prayer in M.P.No.2 of 2008. The amendment was ordered. 9. On behalf of the third respondent, a counter affidavit dated Nil (January 2009) was filed. It was stated that the petitioner was responsible for causing loss and he had misused the corporation money and also forged the records of the tea estate while he was in Molvor Tea Division. In the counter affidavit, while they have given justification for recovering the direct loss and indirect loss caused by the petitioner, there is no justification given in respect of recovery of the subsistence allowance. But subsequent to the filing of the writ petition, it was informed by the District Forest Officer, Udhagamandalam, Nilgiri South Division that the Accountant General had sanctioned monthly pension of Rs.4,963/- with effect from 01.01.1994 and because of the order passed by the Government, the pension for the period from 01.01.1994 to 31.12.1998 was stopped and he was entitled to get pension from 01.01.1999. It was also stated that because of the loss caused by the petitioner, the amount of loss can be withheld. But in so far as the subsistence allowance paid to him from 01.12.1992 to 31.10.2006 was sought to be recovered, no justification has been given. 10. The learned counsel for the petitioner placed reliance upon several judgments of this Court and Supreme Court for contending that inordinate delay can vitiate the charge memo. Therefore, he contended that the charges should be set aside. He also placed reliance upon a judgment of the Supreme Court in M.V.Bijlani v. Union of India and others reported in 2006 (5) SCC 88. It must be noted that his attempt to challenge the charge memo on the grounds of delay was rejected by the Tribunal and that order had become final. Therefore, this Court is not inclined to interfere with the charge memo. https://hcservices.ecourts.gov.in/hcservices/ 11. Heavy reliance which was placed upon by the learned counsel for the petitioner on the M.V.Bijlani's case (cited supra) was also distinguished by the Supreme Court in Govt. of A.P. v. V.Appala Swamy reported in (2007) 14 SCC 49, wherein, it dealt with the parameters of interfering with a charge sheet on the ground of delay. Paragraphs 12, 14 and 15 reads as follows: "12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer. ....... 14. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V. Bijlani v. Union of India(2006 (5) SCC 88). That case was decided on its peculiar facts. In that case, even the basic material on which departmental proceedings could be initiated was absent. The departmental proceedings were initiated after 6 years and continued for a period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced. 15. Bijlani, therefore, is not an authority and, in fact, as would appear from the decision in P.D. Agrawal for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor." (Emphasis added) 12. With reference to the recovery of Subsistence allowance already paid, there is no justification for the respondents to recover the amounts. The Supreme Court, in the decision rendered in Syed Abdul Qadir and others vs. State of Bihar and others ((2009) 3 SCC 475) held in para Nos. 58, 59 and 61 as under:- "58. The relief against recovery is granted by Courts not because of any right in the employees, but in equity, exercising https://hcservices.ecourts.gov.in/hcservices/ judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, Shyam Babu Verma vs. Union of India, Union of India vs. M. Bhaskar, V. Gangaram vs. Director, Col.B.J. Akkara (Retd) vs. Govt. of India, Purushottam Lal Das vs. State of Bihar, Punjab National Bank vs. Manjeet Singh and Bihar SEB vs. Bijay Bahadur. 59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department, had, in its counter-affidavit admitted that it was a bonafide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case and hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. 61. In the result, the appeals are allowed in part; the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellant teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR 22-C would apply https://hcservices.ecourts.gov.in/hcservices/ to the appellant teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of secondary schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment." 13. In the light of the above, the order of recovery of amount already paid towards subsistence allowance from the petitioner cannot be sustained in the light of the judgment referred to above. With reference to the recovery of the penalty amount from the terminal benefits, no interference is called for since the petitioner's liability was fixed in a properly conducted enquiry. It is only after affording reasonable opportunities to the petitioner, the Government had imposed the punishment of withholding the pension for five years. The recovery of loss sustained by the Government servant is covered by the relevant rules. 14. In the result, the writ petition stands allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petitions are closed. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government, Forest Department, Fort St.George, Chennai – 600009. 2.The Principal Chief Conservator of Forest, Forest Department, Panagal Building,Saidapet, Chennai. 3.The Chairman cum Managing Director, Tamil Nadu Tea Plantation Corporation Ltd., Coonoor, Nilgiris District. https://hcservices.ecourts.gov.in/hcservices/ 4.The District Forest Officer, Nilgiri South Division, Uthagamandalam, Nilgiris District. + 1 cc to Mr.S. Kumara Devan, Advocate SR No.9906 + 1 cc to Spl Government Pleader (Forest) SR No.9834 order in W.P.No.18277 of 2008 AR(CO) SR/22.2.2010 https://hcservices.ecourts.gov.in/hcservices/