IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.01.2009 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition No.16610 of 2008 and M.P.No. 1 of 2008 S.Krishnasundaram .. Petitioner VS 1. The Secretary to Government, Housing and Urban Development, (HBI)(1) Department, Fort St.George, Chennai.9 2. The Managing Director, Tamil Nadu Housing Board, Nandanam,Chennai.35. ... Respondents Prayer:- Writ petitions 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 Government Order passed by the first respondent in G.O.(I.D) No.210, Housing and Urban Development H.B.I (1) Department , dated 05.10.2007 communicated to the petitioner by the second respondent by letter dated 28.12.2007, quash the same and consequently direct the second respondent to pay to the retirement benefits with12% interest together with the amount deducted. For petitioner : Mr.S.Baskaran For respondents : Mr.S.Gopinathan, A.G.P.(R1) Mr.A.Vijayakumar (R2) O R D E R The petitioner is a retired Assistant Executive Engineer in the Tamil Nadu Housing Board. During the year 1983-84, he was the Assistant Executive Engineer In Madurai Housing Unit. During that period, the work of construction of 384 radial Type EWS Houses 16 Blocks as per T.D.No.36/82 and 17 Blocks as per T.D.No.37/82 was awarded to M/S. Madurai North Labour Contract Society Limited (Hereinafter referred to as 'Contractor') under Agreement No.8/83-84 for a value of Rs.16,00,468.74/- . The site for the above work was handed over on 09.08.1983 and the work should have been completed on or before 08.02.1984, i.e within a period of six months. The petitioner as Assistant Executive Engineer, was responsible for supply of materials for the purpose of construction. The petitioner was transferred from the said place on 30.04.1984 and thus he was in- https://hcservices.ecourts.gov.in/hcservices/ charge of the said work during the period between 09.08.1983 to 30.04.1984 and the last bill recommended by him was for eight months and VII and part bill. After his transfer, his successor recommended the other payments and accordingly, payments were made besides the supply of materials. But the Contractor did not complete the work and therefore, the contract was terminated. 2. The Local Fund Audit submitted an objection stating that materials were supplied in excess without verifying the progress of work and that proper recovery was not made by the petitioner. According to the audit objection, in this regard, the Board has sustained loss to the tune of Rs.3,36,139/-. Based on the said audit report, a charge memo was issued to the petitioner by Board's Memo No.DC7/24117/98 dated 03.03.2002 containing a single charge, which is as follows: "CHARGE: That the said Thiru S.Krishnasundaram, Assistant Executive Engineer, under suspension (then Special Division-VII, Madurai) while functioning in Madurai Housing Unit during his tenure has committed the following irregularities in the work of construction of Cluster Radial Type EWS Houses as per T D No.36/82-16 Blocks of 24 in I and TD No.37/82-17 Blocks 24 in Madurai North Neighbourhood Scheme, Sector I & II(Phase V) which was executed through M/S.Madurai North Labour Contract Society Limited. He has failed to effectively check the issue and use of materials to the contractor such as Cement and steel etc. to the quantum of requirement and thereby caused issue of excess quantity of materials to the Contractor which were not taken back from the Contractor and failed to propose recovery for the materials issued and also the cost of damages, missed items of works as detailed in Statement- 1. Thus he has caused a loss of Rs.3,36,139/- to Tamil Nadu Housing Board. Thus he violated Para 181 and 182 of Works Code and Section 32(A) of Tamil Nadu Housing Board Service Regulation, 1969." 3. The petitioner submitted his reply on 2.10.2002. Thereafter, an enquiry was held and the Enquiry Officer found the charge partly proved. A show-cause notice was issued to him calling for further explanation, for which the petitioner duly submitted his explanation. Finally, the Tamil Nadu Housing Board by proceeding No.DC3/24117/1998 dated 24.06.2005 has passed an order holding the petitioner guilty of charge and imposing a punishment upon him. The following is the operative portion of the order: "The matter was placed before the Board for taking a decision. The Board examined the matter in detail and the following lapses committed by the individual are held proved and the individual has failed to effectively check the issue and use of materials to the contractor such as cement and steel etc. to the quantum of https://hcservices.ecourts.gov.in/hcservices/ requirement and thereby caused issue of excess quantity of materials to the contractor which were not taken back from the Contractor and failed to propose recovery for the materials issued and also the cost of damages, missed items of works. 4. In view of the above circumstances of the case and gravity of the nature of irregularities and lapses committed by the individual, the Board in its Resolution No.12,01-31 dated 13.06.2005 has resolved:- i) to reinstate Thiru S.Krishnasundaram, Assistant Executive Engineer, who is under deemed suspension under Fundamental Rules 56(1)(C) into the services of the Board on 28.2.1999 and allowed to retire on 28.2.19999 A.N. on attaining the date of super- annuation. ii) to treat the period of suspension as leave to which he is eligible. iii) to recover a sum of Rs.68,500/- from the terminal benefits of Thiru S.Krishnasundaram, Assistant Executive Engineer (Retd.) besides with holding of 1/3rd pension for a period of five years. In pursuance of the orders of the Board, in the reference fifth cited, Thiru S.Krishnasundaram, Assistant Executive Engineer, Madurai Housing Unit, is reinstated into service and allowed to retire on 28.02.1999 A.N and awarded the punishment to recover a sum of Rs.68,500/- from the terminal benefits and also with holding of 1/3rd pension for a period of five years from the pension payable to him. The period of suspension be treated as leave to which the individual is eligible. If he desires so, he may prefer an appeal with the Government against the punishment within a period of sixty days from the date of receipt of the order." 6. Challenging the above order, the petitioner preferred an appeal to the Government. After having considered the said appeal dated 26.08.2005, the Government issued G.O.(D) No.210, Housing and Urban Development Department dated 05.10.2007 dismissing the appeal. Challenging the same, the petitioner has come forward with the present writ petition. 7. The first and foremost contention of the petitioner is that the proceedings of the Housing Board is vitiated on the ground of inordinate delay. According to him, though the incident relates to the year 1986-87, the charge memorandum was issued only in the year 2002 (i.e) on 03.03.2002. after a lapse of 15 years. In the interregnum period , a show cause notice was issued, for which, the petitioner duly submitted his explanation. In view of the inordinate delay, according to the learned counsel, as held by the Hon'ble Supreme Court in the case of P.V. Mahadevan VS Managing Director, Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Housing Board reported in (2005) 6 SCC 636, the entire proceeding is liable to be quashed. 8. In reply to the said contention, the learned counsel appearing for the Board would submit that though it is true that there was delay in initiation of the disciplinary proceedings, that by itself would not vitiate the entire proceedings unless the petitioner is able to show that he has been prejudiced because of the delay. 9. In P.V. Mahadevan's case, the Hon'ble Supreme Court has quashed the disciplinary proceedings not only on the ground of mere delay but also on the ground of likely prejudice to the delinquent. The principle behind is that if the officer is made to face the charges after several years, it would be difficult for him to get the materials like records or other evidences to defend the charges. If that is the case, it is necessary to quash the disciplinary proceedings. But, to the contrary, if it is found that there would be no prejudice caused to the delinquent officer because of the delay in the matter of defending the charges, dehors the delay, the charges in the disciplinary proceedings need not be quashed. 10. Keeping in mind the principles laid down by the Hon'ble Supreme Court, if the facts of the present case are analysed, I am at loss to find anywhere in the explanation submitted by the petitioner to the charges that he had raised preliminary objections on the ground of prejudice due to the delay. He has nowhere stated that he was not in a position to defend the charges for want of materials because of the long lapse of time. When the petitioner himself has not pleaded prejudice anywhere in the explanation submitted by him, there is no question of assuming such a prejudice to the petitioner. Even in the appeal memorandum submitted to the Government, the petitioner has not taken the stand that he was not able to defend the charge because of the inordinate delay. Curiously, for the first time such a stand has been taken in this writ petition. In my considered opinion, it is of no consequence. Going by the defence taken by the petitioner and considering the allegations against him, I am of the view that the delay has not caused any prejudice to him. The explanation offered by him is that he was not responsible for the distribution of materials as it involves several field staff and higher officials. To establish the said defence, the petitioner had not asked for any document. When that be so, though of course, there is inordinate delay in initiating the disciplinary proceeding, that by itself cannot be a ground to quash the entire proceedings. 11. The next contention of the learned counsel for the petitioner is that even after his transfer from the said place, the work was allowed to continue for another three years and the officers who were responsible for the said work during the said period , alone are responsible for non-recovery of excess amount and materials, supplied to the Contractor. This objection had been considered by two authorities in detail. The power of judicial review of this Court cannot be stretched to the extent of re appreciating the evidence considered by the authorities. The limitations on the power of this Court are to be well remembered. No attempt could be made to convert https://hcservices.ecourts.gov.in/hcservices/ this Court into either a court of appeal or a court of revision, so as to compel this Court to re-appreciate the entire evidence available. If the findings given by the Enquiry Officer, which were accepted by the Disciplinary authority as well as the appellate authority, are patently erroneous and without evidence, necessarily this Court has to interfere. But, in this case, the authorities concerned have dealt with the matter in accordance with law and have held that the petitioner did not make proper spot inspection and he did recommend for supply of materials based on the theoretical requirement. It is the specific finding that during his tenure when the work was in progress, the petitioner without making effective supervision, and without verifying the stage of progress made in the execution of work, wrongly supplied materials for more than the theoretical requirements. The auditors, who were experts in the field have given reasons for such finding in the audit report. All the objections raised by the petitioner before the authorities below have been carefully considered by them and found that the petitioner is guilty of the charge. When the experts in the filed like auditors have found that the petitioner, during his tenure was responsible for the loss of excess materials and he did not have effective supervision, this Court cannot take a different view than the one arrived at by the auditors, the enquiry officer, the disciplinary authority and the appellate authority. Though it is true that even after the transfer of the petitioner from the said place, the work was allowed to continue, and the other authority in charge of the work was also responsible for the non completion of the work and non-recovery of the materials from the contractor , that would not absolve the petitioner from his liability. Thus I find no reason to interfere with the conclusion arrived at by the disciplinary authorities as well as the appellate authority that the petitioner is guilty of the charge. 12. In respect of the quantum of punishment, it is the settled law that if the quantum of punishment is highly disproportionate to the gravity of the charges, then, this Court has to necessarily interfere. In this case, the period of suspension has been treated as leave period. A punishment to recover a sum of Rs.68,500/- from the pensionary benefits of the petitioner has been ordered besides withholding 1/3rd of the pension for a period of five years. In respect of recovery of the above said sum of Rs.68,500/- , I am afraid, I cannot concur with the conclusion arrived at by the authorities below. From the records, it could be seen that for recovery of the total loss of Rs.3,22,590/-a civil suit has been filed to recover the same from the contractor. The said suit was filed in the year 1996 through a standing counsel by name Mr. Mariappan. Though it was reported that the case was numbered in O.S.No.941 of 1996 and the same stood posted on 07.02.1997, 29.04.1997, 26.06.1997, 20.08.1997, 28.08.1997, 30.06.1998 and 19.08.1998, later on, it came to light that the suit was neither numbered nor the dates of hearing reported were correct. After that, the standing counsel for Board Mr.Mariappan was removed and one Mr.Mohankumar was appointed as standing counsel for the Board. Thereafter the suit was numbered as O.S.No.980 of 1998 and the same was listed for final hearing on 12.07.1999. It is not known as to what happened ultimately to the suit. When such effective steps have been https://hcservices.ecourts.gov.in/hcservices/ taken for recovery of the amount from the contractor, yet another recovery cannot be made from the petitioner, as the same would amount to unjust enrichment on the part of the department, which is not legally permissible. The Board may very well recover the amount by further proceeding against the contractor. Therefore, the impugned order, insofar as the direction for recovery of Rs.68,500/- is concerned, is liable to be quashed. However, I do not find any reason to interfere with the other punishment viz. withholding of 1/3 of the pension for five years. The said punishment cannot be stated to be disproportionate in any manner to the gravity of the charge. 13. In the result, the Writ Petition is partly allowed in the following terms: i). The impugned order of punishment so far as it directs recovery of Rs.68,500/- from the pensionary benefits of the petitioner, is concerned, it is quashed. ii). The punishment of withholding 1/3rd pension for a period of five years from the pension payable to the petitioner is confirmed. In all other aspects, the impugned order stands confirmed. Connected miscellaneous petition is closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. pal To 1. The Secretary to Government, Housing and Urban Development, (HBI)(1) Department, Fort St.George, Chennai.9 2. The Managing Director, Tamil Nadu Housing Board, Nandanam,Chennai.35. + 1 CC to Mr.S.Baskaran, Advocate SR.NO.4114 + 1 CC to M/s.A.Vijayakumar, Advocate SR.NO.4179 + 1 CC to Government Pleader, Advocate SR.NO.4396 W.P.No.16610/2008 MG(CO) EM/3.2.09 https://hcservices.ecourts.gov.in/hcservices/