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2014 DIGILAW 1086 (MAD)

K. S. Josephine v. Secretary

2014-06-03

R.MAHADEVAN

body2014
Judgment : 1. The case of the petitioner is that he was appointed as Junior Assistant in the Annavasal Panchayat, on 16.06.1983, and thereafter, promoted as Assistant. Later, she was promoted as Deputy Block Development Officer and subsequently as Block Development Officer, on 05.07.2007. At present, the petitioner is working as Social Welfare Officer in the Tsunami Project. A memo, dated 18.05.2009, was issued to the petitioner, calling upon her explanation within seven days on the ground that while the petitioner was working in Annavasal Panchayat Union, she did not maintain register, regarding the auction of gunny bags. Denying the allegations levelled against her, the petitioner submitted her explanation. In spite of her explanation, the third respondent issued a charge memo, dated 09.12.2009, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, levelling as many as three charges. As the disciplinary proceedings initiated against the petitioner were not concluded, the petitioner approached this Court, by filing W.P.[MD].No.6751 of 2011. This Court, by order, dated 27.06.2011, directed the authority concerned to dispose of the disciplinary proceedings initiated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, within a period of six weeks. Thereafter, the third respondent, by proceedings, dated 02.09.2011, passed an order, postponing the increment for a period of six months without cumulative effect. Aggrieved over the same, the petitioner preferred an appeal before the second respondent. By proceedings, dated 14.08.2012, the second respondent, confirmed the order passed by the third respondent. That is how, the petitioner is now before this Court with the present Writ Petition. 2. The learned counsel appearing for the petitioner vehemently contended that a false case was foisted on the petitioner due to personal enmity and to prevent the petitioner from getting promoted. The learned counsel contended that both the respondents have mechanically accepted the findings of the enquiry officer, which are not based on any documentary evidence, except the statement of clerk and the vendor. The learned counsel further contended that the respondents failed to consider the statement of the Deputy Block Development Officer and the version of the petitioner that the Register was not handed over to the petitioner by the erstwhile Block Development Officer/Commissioner. The learned counsel further contended that the respondents failed to consider the statement of the Deputy Block Development Officer and the version of the petitioner that the Register was not handed over to the petitioner by the erstwhile Block Development Officer/Commissioner. The learned counsel further contended that the respondents also failed to consider that the petitioner was in charge of the panchayat union only for three months from 11/08 to 02/09 and during the said period, no sale was conducted by the president. The learned counsel also contended that the second respondent, without even any discussion on the grounds of appeal, confirmed the order of the first respondent, and therefore, sought the setting aside of the impugned proceedings and appropriate direction. 3. Per contra, the learned Government Advocate appearing for the respondents, relying upon the counter affidavit, contended that the orders have been passed based on a sound finding by the enquiry officer and that there is nothing perverse in the impugned orders. The Government Advocate further contended that the petitioner, who entrusted with public money, caused loss to the exchequer, which has been proved, and hence, sought the dismissal of the Writ Petition. 4. Heard both sides and perused the records. 5. The charges framed against the petitioner are as follows: "That the petitioner failed to hand over the stock register (2005 to 02/2009) and misused the office documents That the petitioner has not deposited Rs.17,056/-being the sale consideration received after auctioning 3800 gunny bags on 15/12/2008. Because of the above acts, the petitioner has committed misconduct amounting to violation of Rule 20(1) of the Tamil Nadu Government Servants Conduct(Discipline and Appeal) Rules." 6. In reply to the above charges, the petitioner had submitted that she was not handed over the register by her predecessor and the same is also evident from the statement of the Deputy Block Development Officer that no such sale of gunny bags was made, and hence, she had not committed any misconduct. It is only on personal enmity and to prevent her from getting promoted, such false charges have been framed with the help of the section clerk and the vendor. 7. The enquiry officer, without conducting any further enquiry after the reply of the petitioner, by mere interpretation of the statements, had found the petitioner guilty of the charges. 8. It is only on personal enmity and to prevent her from getting promoted, such false charges have been framed with the help of the section clerk and the vendor. 7. The enquiry officer, without conducting any further enquiry after the reply of the petitioner, by mere interpretation of the statements, had found the petitioner guilty of the charges. 8. While assessing the evidence, the enquiry officer had held that the Section Clerk had claimed to have handed over the register to the petitioner and since no action was taken against her, it can be presumed that her statement is true, and therefore, the enquiry officer has held the charges to be proved. 9. Usually, the charge along with all registers will be handed over by the person moving out to the person moving in and not by the Section Clerk. The enquiry officer also failed to take into account the statement of the petitioner and the Deputy Block Development Officer, who claimed that the stock register was not handed over by the predecessors to their posts. Mr.Varadarajan, Deputy Block Development Officer has stated that even at the time of joining duty, on 03.04.2008, much before the date on which the petitioner took charge as Commissioner, the stock register was retained by the erstwhile commissioner and not handed over by the then Deputy Block Development Officer. The petitioner has also relied upon the statement of the erstwhile Commissioner that the stock register was not handed over to the petitioner. From a reading of the statement of Mr.Varadarajan that the commissioner said that she will take care of the register and accounts could have been made only by the erstwhile commissioner and not by the petitioner as the petitioner had taken charge only on 19.11.2008. When serious disputes have been raised with regard to handing over possession, the enquiry officer ought to have summoned and heard the erstwhile commissioner and Deputy Block Development Officer to ascertain the real situation. This Court is of the view that the failure to examine the erstwhile commissioner and the Deputy Block Development Officer has certainly vitiated the enquiry proceedings. 10. The basis for the first charge is the second charge that the petitioner has failed to deposit the consideration for the sale of gunny bags into the treasury sold by auction, on 15.12.2008. This Court is of the view that the failure to examine the erstwhile commissioner and the Deputy Block Development Officer has certainly vitiated the enquiry proceedings. 10. The basis for the first charge is the second charge that the petitioner has failed to deposit the consideration for the sale of gunny bags into the treasury sold by auction, on 15.12.2008. The findings of the enquiry officer with regard to the second charge is that even though no auction was conducted, the vendor has, in writing, stated that he handed over a sum of Rs.17,056/-to the petitioner and in the absence of any personal enmity between the vendor and the petitioner, her statement has to be accepted, and therefore, the charge was held to be proved. The findings of the enquiry officer are in contradiction and are in the effect of nullifying the charge itself. The charge is that the gunny bags were sold by auction and the finding is that even though no auction was conducted, the money was paid. If no auction was conducted, the charge itself would not survive. If the gunny bags were auctioned there would have been a public notice, offers from other vendors and an order confirming the sale to the successful vendor. But, no such records are available, and therefore, this Court is of the view that no such sale of gunny bags took place, on 15.12.2008. Further, the petitioner has specifically claimed that the money was paid to the treasury by the vendor and only the receipt was produced. However, the findings are that after collecting the money, the petitioner has failed to deposit the same in the treasury and collect the challan. The finding of the enquiry officer here again is not acceptable, because it is only after the deposit of money in the treasury, the gunny bags would be handed over on production of receipt. First of all, the third respondent has failed to point out in the charge itself the dates on which the empty gunny bags were moved to the Annavasal Panchayat from the Noon Meal Centre. The movement register from the Noon Meal Centre could have been obtained and produced to show that the available stock as on 15.12.2008 was 3800. No such records were produced and the enquiry officer also did not call for the same. The movement register from the Noon Meal Centre could have been obtained and produced to show that the available stock as on 15.12.2008 was 3800. No such records were produced and the enquiry officer also did not call for the same. To even assume that a sale has taken place, an order would have been passed after sale, but before handing over the gunny bags to the vendor. No such documents were produced. Therefore, this Court is of the view that the findings of the enquiry officer are merely based on presumptions and not based on any material documents. 11. In view of all the above, since the finding of the enquiry officer itself is that no auction had taken place, the second charge cannot be held to have been proved. The finding of the enquiry officer that there is no reason for the vendor to act against the petitioner is not acceptable. The findings should be based on material evidence and not on probabilities and trustworthiness of statements. Hence, the finding of the enquiry officer with respect to second charge is also unacceptable. In view of the fact that this Court has held that the first charge cannot be held to have been proved in the facts and evidences, the third charge automatically does not survive. 12. Both the disciplinary authority as well as the appellate authority have failed to consider the deficiencies in the findings of the enquiry proceedings and the findings. In fact, both the second and third respondent have just extracted the findings and passed orders. Both of them have failed to appreciate the points raised in the explanation and appeal. Therefore, the impugned orders are also non-speaking. However, since this Court has already held that the charges are held not to be proved, straight away the impugned orders are set aside. 13. The next point for consideration is promotion. The petitioner lost her opportunity for promotion, as the charges were pending against her. Since the charges have been framed without any basis, this Court only able to foresee that the baseless charges were framed in order to deny the promotion. Hence, the first respondent is directed to promote the petitioner as per her original seniority and grant her all monetary benefits within a period of six weeks from the date of receipt of a copy of this order. 14. Hence, the first respondent is directed to promote the petitioner as per her original seniority and grant her all monetary benefits within a period of six weeks from the date of receipt of a copy of this order. 14. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.