IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20-03-2008 CORAM THE HONOURABLE Mr.Justice ELIPE DHARMARAO AND THE HONOURABLE Mr.Justice S.TAMILVANAN W.P. Nos.40119 & 40120 of 2002 I.Subramanian .. Petitioner in both the writ petitions Versus 1. Government of Tamil Nadu rep. by its Secretary Public Works Department, Fort St.George, Chennai 600 009. 2. The Chief Engineer, PWD, (General),Chennai-5. 3. The Register, Tamil Nadu Administrative Tribunal Chennai -600 104. ... Respondents in both the writ petitions Prayer: These writ petitions have been filed under Article 226 of the Constitution of India seeking for the relief as stated therein. For Petitioner : Mr.N.S.Nandakumar For Respondents : Mr.K.Balakrishnan, AGP COMMON ORDER S.TAMILVANAN, J W.P.No.40119 of 2002 has been filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, directing to call for the records in O.A.No.5801 of 2001, dated 14.06.2002 on the file of the Tamil Nadu Administrative Tribunal, Chennai and quash the same, in so far as the rejection of the claim for the promotion of the petitioner is concerned and also to direct https://hcservices.ecourts.gov.in/hcservices/ the first and second respondents to consider the claim of the petitioner for the promotion as Superintending Engineer and Chief Engineer by including the name of the petitioner in appropriate places in the panels for Superintending Engineer and Chief Engineer for the years 2000-2001 and 2001-2002 respectively. 2. W.P.No.40120 of 2002 has been filed seeking the order in the nature of a writ of certiorari to call for the records in O.A.No.5802 of 2001, dated 14.06.2002 on the file of the TamilNadu Administrative Tribunal, Chennai and quash the order dated 14.06.2002 made in so far as it confirms the punishment of stoppage of increment for two years without cumulative effect passed against the petitioner in G.O.2(D) No.49, PWD dated 16.10.2000 on the file of the first respondent. 3. It is seen that the writ petitioner herein had filed O.A.No.5801 and 5802 of 2001 before the Administrative Tribunal, Chennai under Section 19 of the TamilNadu Administrative Tribunal, Act, 1985, to call for the records from the second respondent herein in memo No.C1.(1)/12010/00-3 dated 24.08.2001 and quash the same in the panel of Superintending Engineer, for the year 2000-2001 and to pass appropriate orders in the circumstances of the case. In O.A.No.5802 of 2001 the petitioner had sought for an order to call for the records of the respondent in G.O.(2D)No.49 dated 16.10.2000 and quash the same. After considering both the Original Applications on merits, the Administrative Tribunal by a common order dated 14.06.2002, held that the writ petitioner herein, being a Government servant cannot be promoted during the currency of punishment and on that ground dismissed the O.A.No.5801 of 2001. So far as O.A.No.5802 of 2001 is concerned, the impugned order therein was set side by the Tribunal to a limited extent that there will be no recovery of Rs.1.33 lakhs from the writ petitioner and only to that extent, the G.O. was set aside and in other words, punishment was held to be sustained. 4. It is not in dispute that on the date of filing of the aforesaid applications, the petitioner Thiru I.Subramanian was working as Executive Engineer, Buildings Division, Trichy. The writ petitioner was appointed initially as Junior Engineer in the year 1969, after he was selected by Tamil Nadu Public Service Commission, then he was sent on deputation to the Tamil Nadu State Construction Corporation, Madurai as site engineer on 01.11.1980 and in 1981 he was promoted as Assistant Executive Engineer in PWD and as Project Engineer in the Tamil Nadu State Construction Corporation, Madurai. It is an admitted fact that in 1991, the writ petitioner was promoted as Assistant Executive Engineer in PWD and also project engineer in the Tamil Nadu State Construction Corporation and he was in charge of the construction of commercial tax officers building complex between 1981-1984 and on 31.10.1985 he was relieved from the Tamil Nadu State Construction Corporation. https://hcservices.ecourts.gov.in/hcservices/ 5. It is not in dispute that the Tamil Nadu State Construction Corporation, a State undertaking was formed by the State Government for the purpose of undertaking construction works of various projects by itself. The Engineers in various departments of the Government of Tamil Nadu, mainly from PWD have been entrusted with the task of construction work from masonry work upto completion of construction and at the same time, their work was not hampered by too many restrictions usually placed as per the special procedure prescribed in the P.W.D. code. Though the Corporation was created as an independent agency, it is mainly manned by engineers from public works department of the State Government. 6. The petitioner herein was the first Assistant Engineer who was sent on deputation to the Corporation between 1981-85, as project engineer and he was put in-charge of construction of a commercial tax officers complex, a building at Madurai and was also in-charge of other construction works. Since the petitioner had completed five years of deputation in the Corporation, he was recalled and reverted to his Public Works Department, being his parent department by the proceedings of the second respondent, Chief Engineer(General) PWD, dated 31.10.1985. The transfer was made, all of a sudden and the petitioner was also on the verge of completing the five years deputation period. He went on leave for three months and during the said leave period, he had completed the paper work and also handed over all the records while he was relieved. 7. According to the petitioner, he had submitted the accounts for execution of the said project and also accounted for all the moneys, which he had withdrawn from the Corporation towards the project. However, nearly five years thereafter, a charge memo was served on the petitioner, issued by the second respondent, Chief Engineer (General) PWD on 09.06.1989, stating that the following charges were made against the petitioner: " 1. That Thiru. I.Subramaniam, Assistant Executive Engineer, PWD, has rendered part account for Rs.12.23 lakhs without supporting documents such as bill forms in proper manner along with M.Book references and rate approval etc., which constitute a violation of Rule 20 of TNGSC Rules 2. that Thiru I.Subramaniam, Assistant Executive Engineer, PWD, has failed to render the account for Rs.1,33 lakhs with the adjustment particulars to the Corporation till date and the said amount is liable to be recovered from him. 3. that Thiru I.Subramaniam, Assistant Executive Engineer, PWD has filed to obtain the signature of the contractors in the M.Books and in the bill https://hcservices.ecourts.gov.in/hcservices/ forms in token of having accepted the measurements and rates thereby violating the Note (d) under Para 294 of 'A' Code. 4. that Thiru. I.Subramaninam, Assistant Executive Engineer, PWD has shown scant respect to the several instructions issued by the Corporation as well by the Chief Engineer (General) couples with gross disobedience of his superiors and negligence of duty etc., violating rule 20 of TNGSC Rules." 8. As per the charge memo issued under Rule 17(b) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, the petitioner was directed to submit his explanation within two weeks. According to the petitioner, he had submitted his explanation as directed by his Superior Officers, but the Department kept quite for nearly three years and only on 20.11.1992 appointed an enquiry officer to conduct the enquiry and accordingly, the enquiry officer conducted the enquiry on 02.03.1994. 9. According to the petitioner, in the charge memo, list of witnesses was not annexed, however, basic documents of accounts of the Corporation were mentioned in the list of documents. But, no witness was examined and no document was marked, however, the enquiry officer had submitted a report to the Chief Engineer which was returned with the direction to submit the report in proper form. Thereafter, the enquiry officer conducted the enquiry, called upon the petitioner, wherein no witness was examined, but the enquiry officer had given his findings that the charges have been proved against the petitioner and a copy of the enquiry report was sent to the petitioner and he was asked to submit his defence for the final report and the petitioner accordingly submitted his final representation also and final orders were passed thereafter. 10. As per G.O.Ms.No.36, Public Works (A1) Department, dated 31.01.1997, a panel for promotion to the post of Executive Engineer was notified, but the name of the applicant was not included, though the names of his juniors find a place therein. Therefore, the petitioner was constrained to file O.A.No.1647 of 2002 praying for a direction to the respondents 1 and 2 to consider the name of the petitioner for promotion and to include his name in the aforesaid panel. 11. The Tribunal had given a direction to the effect that G.O.Ms.No.593, Public Works (A1) Department, dated 13.10.1983 was passed directing the Chief Engineer to include the name of the petitioner in the panel for the year 1996-97 and accordingly the name of the petitioner was also included in the panel published in G.O.MS.No.36, Public Works (A1) Department, dated 31.01.1997 and the petitioner was promoted as Executive Engineer by G.O.Ms.No.172, https://hcservices.ecourts.gov.in/hcservices/ Public Works (A2) Department, dated 23.03.1999. Thereafter, the Government passed an order in G.O.(2D) No.49, Public Works (E2) Department, dated 16.10.2000, by which the petitioner was punished by way of stoppage of increment for two years, without cumulative effect and also ordered for recovery of Rs.1.33 lakhs from the petitioner in 31 monthly instalments. In the meantime, the Government published the panel for Superintending Engineer in G.O.Ms.No.317, Public Works (A1) Department, dated 26.06.2000, according to which the petitioner was also eligible for promotion to the post of Superintending Engineer. However, the name of the petitioner was not included. Hence, the petitioner made a representation for inclusion of his name in the panel for Superintending Engineer. The Chief Engineer(General) PWD sent areply dated 24.08.2001 to the petitioner stating that his name could not be included in the panel because of the currency of the disciplinary proceedings, since the punishment of stoppage of increment for two years had been ordered. As per the final orders, in October 2000, the petitioner's name could not be included, on the ground that it was during the currency of punishment. As the petitioner was likely to retire on 30.04.2001, he was constrained to file O.A.No.5801 of 2001 praying to set aside the order of the second respondent dated 24.08.2001 and to direct the second respondent for inclusion of the his name in the panel of Superintending Engineer. O.A.No.5802 of 2002 had been filed by the petitioner, challenging the order of punishment imposed on him by the then, G.O.(2D) No.49, Public Works (E2) Department, dated 16.10.2000. 12. The point for consideration before the Administrative Tribunal was as to whether the punishment imposed on the petitioner was liable to be set aside and whether rejection of the name of the petitioner for inclusion in the panel for promotion as Superintending Engineer is legally sustainable or not? 13. It is not in dispute that the petitioner had been charged on four counts for certain lapses and procedural violations, while he was working as Project Engineer in the TamilNadu State Construction Corporation, Madurai. The petitioner was put in charge of the construction of Commercial Tax Officers' Building Complex at Madurai and he was also in charge of certain other project works. So far as the order for recovery of Rs.1.33 lakhs from the petitioner is concerned, the Administrative Tribunal has held that in the absence of any loss, the department is not justified in ordering recovery of the said amount. The Tribunal has further held that the technical lapses committed by the petitioner may be construed as violation of rules, quoted in the charge memo. Hence, the punishment of stoppage of increment for two years without cumulative effect is justified and can never be stated to be severe or disproportionate to the proved charges. However, the Tribunal held that there is no evidence for the loss caused to the Corporation or the Government and therefore, the order of recovery of the aforesaid amount was set aside. As per the finding of the Tribunal, the petitioner could not get promotion as https://hcservices.ecourts.gov.in/hcservices/ Superintending Engineer, during the currency of the punishment and the punishment was imposed on him, as per G.O.(2D) No.49, Public Works (E2) Department, dated 16.10.2000 and after the period of stoppage of increment for two years, the petitioner could be considered for promotion to the post of Superintending Engineer, if he is otherwise fit for the promotion. As per the impugned common order dated 14.06.2002, the Tribunal held that no direction could be given at that stage, directing the respondents 1 and 2 to promote him to the post of Superintending Engineer or to include his name in the panel for the same. 14. The first charge is that the petitioner herein had withdrawn the amount of Rs.12.23 lakhs entrusted to him for the aforesaid project, however, he has not given supporting documents such as bill forms in proper manner along with M.Book references and rate approval etc. The second charge is that the petitioner has failed to render the account for Rs.1.33 lakhs with the adjustments particulars to the Corporation till date and the said amount is liable to be recovered from him. The money withdrawn and paid to the sub-contractors showing steady progress in the work, on the basis of impress vouchers showing the proposed payment to the sub-contractors and the quantum of work to be undertaken and completed. During the period for which monies are withdrawn from the Corporation by the contractors to be paid by the Project Engineer and the corresponding measurements of works done are to be entered in the M.Book, as per procedure. 15. As found by the Tribunal, there is no complaint against the petitioner herein that he had not utilised the funds entrusted to him or money withdrawn by him from the Corporation for completion of the project undertaken by him was not spent for the work. Similarly, there is no allegation that prompt payments have not been made to the sub-contractors or funds have been diverted by the petitioner and misappropriated by him. There is no complaint or allegations that the alleged payments made to sub-contractors were not actually paid and pocketed by the petitioner. It is not in dispute that there is no complaint against the petitioner that the work shown as completed have not been actually executed on the site or the work has been left incomplete. Therefore, there is absolutely no complaint of breach of trust, diversification of funds or causing loss to the Corporation. It is seen that no statement of allegations has been made against the petitioner with regard to any misappropriation or fraud or incompletion of work or any discrepancy in the work done on the site. According to the respondents 1 and 2 herein, out of the said amount, only Rs.1.33 lakhs remains unaccounted, since supporting documents and adjustments have not been made by the petitioner in the relevant records. https://hcservices.ecourts.gov.in/hcservices/ 16. The third charge is that he had failed to obtain signature of the contractors in the M.Book and in the bill forms in token of having accepted the measurements and rates. The fourth charge is that he had shown scant respect to the several instructions issued by the Corporation as well by the second respondent with gross disobedience of his superiors and thereby caused negligence of duty etc., violating Rule 20 of TNGSC Rules. 17. It is clear that out of Rs.12.23 lakhs entrusted to the petitioner, he had done the work and there is no complaint by the corporation that the amount drawn was not actually spent for execution of the project or that the payment intended for contractors have not been paid by the petitioner. Similarly, there is no complaint from the sub-contractors that amount due to them towards the work done have not been paid by the petitioner. As found by the Tribunal, it is not the case of the Corporation that after the petitioner had left the Corporation, they were made to make payment to any sub-contractors for the works done by them, for which money had been already withdrawn by the petitioner. It is not in dispute that payments have been made to the sub-contractors and the work was in progress smoothly and continuously without any stoppage, however, the petitioner has to obtain vouchers and also make necessary entries in the M.Book and get signature of the sub-contractors in the vouchers and also in the M-Book, once the quantity of the work is completed by the sub-contractors. It is seen that the gravemen of the charge against the petitioner is that for a sum of Rs.1.33 lakhs, he had not obtained signature of the contractors in the bill form and also in the M.Book. The M.Book is the main document, wherein progress of the project and works carried out on the site are to be noted by the Engineer in-charge. The Site Engineer has to make entries in the M.Book for actual execution of the work. Only based on the measurements shown in the M.Book payments have to be made and adjusted towards the cost of construction for the entire project. 18. It is not the case of the respondents 1 and 2 that the petitioner had failed to prepare M.Book or failed to show the progress of the work in the M.Book. In fact, the petitioner had shown the complete work carried out by him and the actual work done by the sub-contractors, the petitioner has noted the measurements in the M.Book. The charge is that he has not obtained signature of the contractors to the extent of Rs.1.33 lakhs. It is not in dispute that for the major portion of the work carried out, entries have been made in the M.Book and supported by signatures of contractors and only for portion of the amount of Rs.1.33 lakhs, though necessary entries were made and measurements and progress work were noted in the M.Book, signatures of the contractors were not obtained. The petitioner has also not disputed that the signatures of the contractors were not be obtained by him. https://hcservices.ecourts.gov.in/hcservices/ 19. As found by the Tribunal, there cannot be subsequent adjustments and there is no point in getting signatures of the contractors in the M.Book, long after the payments have been made. At the same time, there is absolutely no complaint from the Corporation that the amounts drawn from the Corporation by the petitioner was not spent for the works done. It is not the case of the respondents 1 and 2 that the measurements found in the M.Book did not tally with the measurements of the actual work done at the site. In fact, the Corporation has not disputed the fact that the amounts withdrawn by the petitioner have been spent only for the execution of the works and none of the sub-contractors have made any complaint to the Corporation against the petitioner. The main allegation against the petitioner by the respondents 1 and 2 is that he has not complied with the formalities of obtaining signature of the contractors in the M.Book and in the bill forms for the value of Rs.1.33 lakhs. Hence, even if the charges are held as proved, the lapses committed by the petitioner did not involve in wrong application of funds, misappropriation or cheating. 20. It is not in dispute that the Corporation has not incurred any loss. However, the petitioner is guilty of certain technical lapses, without involving any fraud, cheating or misappropriation, which amounts to violation of Rules quoted in the charge memo. Hence, the punishment of stoppage of increment for two years with cumulative effect is justified and can never be stated to be severs or disproportionate to the proved charges. 21. Mr.N.S.Nandakumar, learned counsel appearing for the petitioner submitted that the petitioner had to attain superannuation on 30.04.2003 and as per the order passed in G.O.(2D) No.49, dated 16.10.2000, punishment of stoppage of increment for two years without cumulative effect was ordered. According to him, it was only a minor punishment and hence, the petitioner could not be denied promotions and the said punishment would not stand in the way of giving promotion to the petitioner, while considering his service records from 1985 onwards. He has further submitted that as per Rule 8 of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, withholding of increment (or) promotion is a separate punishment. In the instant case, the petitioner was punished with stoppage of increment for two years without cumulative effect and also withholding of promotions and hence, the petitioner has prayed that the punishment should be set aside and ignored for considering the petitioner for two stage of promotions in the respective year of his eligibility. With the above pleadings, it was prayed on behalf of the petitioner to quash the order, dated 14.06.2002 made in O.A.No.5801 of 2001 on the file of the third respondent and to direct the respondents 1 and 2 to consider the claim of the petitioner for promotion as Superintending Engineer and Chief Engineer, by including the name of the petitioner in appropriate places in the panels for https://hcservices.ecourts.gov.in/hcservices/ the year 2000-2001 and 2001-2002 respectively. Since the petitioner had already attained superannuation, the learned counsel appearing for the petitioner pleaded for notional promotion to be given on par with his juniors with mandatory benefits, according to law. 22. The petitioner was admittedly imposed punishment of stoppage of increment for two years without cumulative effect, as per G.O.(2D) No.49, dated 16.10.2000. As contended by the learned counsel for the petitioner, it could be construed only as a minor punishment and solely based on the same, he could not be denied further promotion. It is seen further that stoppage of increment was given effect by order, dated 16.10.2000 for two years. The respondents have not denied that the petitioner had to attain superannuation only on 30.04.2003. In such circumstances, he was eligible to be considered for promotion along with his junior, prior to the date of superannuation. If he is otherwise fit for promotion along with his juniors, he would be eligible for notional promotion and based on which, eligible for corresponding retirements benefits. 23. With the above observations, the writ petitions are disposed of. No costs. Sd/ Deputy Registrar (Judicial) /true copy/ Sub Asst.Regitrar tsvn To 1. The Secretary Government of Tamil Nadu Public Works Department, Fort St.George, Chennai 600 009. 2. The Chief Engineer PWD, (General),Chennai-5. W.P. Nos.40119 & 40120 of 2002 rj [co] gkg/27.3 https://hcservices.ecourts.gov.in/hcservices/