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S. Durairaj (Deceased) & Others v/s The Secretary to Government, Municipal Administration & Water Supply (Paru 4) Department, Secretariat, Chennai & Others


Company & Directors' Information:- K K S WATER PRIVATE LIMITED [Active] CIN = U52100WB2014PTC199844

Company & Directors' Information:- OF WATER PRIVATE LIMITED [Active] CIN = U51909MH2018PTC317142

Company & Directors' Information:- F & G SUPPLY PRIVATE LIMITED [Active] CIN = U51900DL2012PTC239188

Company & Directors' Information:- T. G. S. WATER PRIVATE LIMITED [Strike Off] CIN = U51109DL2010PTC205948

Company & Directors' Information:- WATER INDIA PRIVATE LIMITED [Active] CIN = U74990DL2016PTC298912

    W.P. No. 949 of 2009

    Decided On, 01 September 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR.(MRS.) JUSTICE ANITA SUMANTH

    For the Petitioners: K. Sannjay, Advocate. For the Respondents: S. John J. Raja Singh, Government Advocate.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue Writ of Certiorarified Mandamus to call for the records on the file of the 1st respondent in G.O. Ms.No.133 (Irubadhandu) Municipal Administration and Water Supply (Peru.4). Dept. Dated 07.10.2008 and Proceedings Na.Ka.No.10503/2000/A5 dated 13.11.2006 of the 2nd respondent and quash the same and consequently direct the respondents to pay the pensional and other monetary benefits to the petitioner immediate.)

1. The petitioner was appointed as Lower Divisional Clerk in the year 1961 and promoted through the ranks till his final post as Selection Grade Executive Officer in 1991. His date of retirement was 31.12.1999. However in the months prior to his retirement, the petitioner received a charge memo on 03.02.1999 from the third respondent i.e., the District Collector, Erode pointing out certain discrepancies in the incurrence of expenditure, by him, as a result that he had not been permitted to retire.

2. The discrepancies pertain to the period 1997-1998 and the main submission of the petitioner, who challenges an order of dismissal dated 13.11.2006 is to the effect that the proceedings in this case are inordinately delayed. An explanation to the charges laid was tendered by the petitioner on 05.08.1999 and after consideration of the explanation tendered, the enquiry officer submitted his report on 20.10.1999. Additional explanations were tendered by the petitioner on 21.02.2000 after the date of his superannuation.

3. However, order dated 13.11.2006 came to be passed accepting the report of the enquiry officer and concluding that charges 1 and 4 were proved, 2 and 3 partly proved and charge 5 not proved. The respondent thus inflicted the punishment of dismissal from service.

4. The petitioner challenged the order of the original authority by way of a writ petition in W.P. No.49740 of 2006. This writ petition came to be dismissed on 21.12.2006 relegating the petitioner to statutory remedy, in compliance of which, the petitioner preferred an appeal on 08.01.2007 before the appellate authority.

5. Pausing for a moment, one of the contentions of the learned counsel for the petitioner is that the order passed by the original authority is fraught with delay as the enquiry had been concluded in 1999 and there was no justification for having delayed the passing of the order till 2006.. However, as rightly contended by the State, the fact that the petitioner has acquiesced to order passed in the writ petition on 21.12.2006 relegating the petitioner to statutory appeal would close the door as far as this contention is concerned. If at all the petitioner had been aggrieved by the order relegating him to statutory appeal and wished to pursue the ground of inordinate delay, order dated 21.01.2006 ought to have been challenged. Having accepted the order passed on 21.12.2006 and filed a statutory appeal, this ground does not survive any further.

6. For the sake of completion, I refer to the case law cited by the learned counsel for the petitioner in support of his argument on the aspect of delay that are:

(i) M.Elangovan Vs. The Trichy District Central Co-op Bank Ltd., and another (2006 (2) CTC 635)

(ii) D.Amaladoss V. The State of Tamil Nadu and another (2006 (5) CTC 141)

(iii) The State of Tamil Nadu and another Vs. B.Arjunlal (W.A. No.180 of 2011 dated 28.06.2013)

(iv) S.A.Antony Vs. The State of Tamil Nadu (W.P. No.18782 of 2006 dated 03.01.2008)

(v) B.Arjunlal Vs. The State of Tamil Nadu and another (W.P. No.16546 of 2009 dated 05.03.2010)

7. In the case of Mr.Elangovan (supra), the delay had occurred while the petitioner was in service. Charges were levelled as against that petitioner 5 years after the charge memo was framed in the first instance and 10 years after the charge memo was framed, in the second instance. The Court found that the lethargy and delay in the conduct of proceedings obstructed the avenues of promotion of the petitioner and this had caused substantial mental agony and hardship. I find the facts distinguishable in the present case.

8. As regards the case of D.Amaldoss (supra), the authority had taken six years to complete the enquiry and impose the punishment, whereas, in the present case, the initial delay, till the time of passing of the original order stands resolved and cannot be agitated any further, in light of the order passed in the earlier writ petition. Furthermore, the appellate authority has passed the order within the time lines as set by the Court and thus there is no avenue to challenge the order of the appellate authority on this score.

9. In the case of S.A. Antony (supra), the delay is manifold, as can be seen from a reading of paragraph No.6, wherein the Court records that charges had been framed on a particular date, but final orders were passed after 8 years. The same reasoning as per the earlier case would apply to the present case as well.

10. In the case of B.Arjunlal (supra), at paragraph No.11 reveals that the authority had issued a memo of charges after a period of 4 years, the enquiry report was given after 7 years, there was a delay in communicating a report to the petitioner and thereafter, for 5 years no action was taken by the authority. The review petition was not considered for a period of 3 years subsequent to the same. Again, I find the facts and periods of delay different and hence distinguishable.

11. The appellate authority dismissed the appeal filed by the petitioner confirming the punishment imposed by the original authority and it is as against the aforesaid order of the appellate authority that the petitioner has filed the present writ petition. In the interim, writ petitioner has passed away and it is his legal heirs who are now canvassing the matter on his behalf.

12. In the previous hearings, it was noticed that one of the issues that arises is as to whether the incurrence of expenditure was in violation of G.O.Ms.No.25 dated 09.02.1993 insofar as the aforesaid G.O stipulated a threshold of Rs.3,000/- for such incurrence, without sanction. It was only in regard to the expenses that exceeded the threshold of Rs.3,000/- that the petitioner was required to seek sanction from the District Collector.

13. In proceedings dated 18.08.2021, this Court has noticed that in the affidavit filed in support of the writ petition, the petitioner had sought to make a distinction between expenses to be incurred on 'emergency' basis and 'routine' basis and thus the question that was posed was as to whether the threshold of Rs.3,000/- would apply only to emergency expenses or to routine expenses a well.

14. Since G.O. Ms. No.25 referred to an earlier Government Order in G.O. Ms. No.145 dated 05.03.1985, the parties were directed to produce both Government Orders to see whether they threw any light on the resolution of this question.

15. When the matter is taken up for hearing today both parties confirm that the second G.O, that is G.O. Ms. No.145 dated 05.03.1985 is unavailable.

16. However a perusal of G.O. No.25 would itself clarify the question, and there need be, in my view, no further reference to G.O.145. G.O. No.25 narrates the entire context in which G.O.No.145 was issued and only seeks to increase the threshold from Rs.1000/- as set under G.O. No.145, to Rs.3,000/-.

17. The language of the G.O. is relevant and I thus deem it appropriate to extract the same in full.

“TAMIL”

18. A perusal of the G.O indicates that the threshold has been set in regard to income and expenditure of all nature and no distinction is envisaged between 'emergent' expenditure and 'routine' expenditure.

19. Learned counsel for the petitioner would submit that in this regard that the statement in the writ affidavit and the reference to 'emergency expenditure' was misplaced and need not be given any credence by the Court. In light of the language of G.O. 25, as seen above, this submission of the petitioner seems appropriate. The contention that approval of the District Collector was required only in regard to expenditures exceeding Rs.3,000/-, is thus found to be in order.

20. The conclusion as above may not however come to the aid of th

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e petitioner in this case. Upon a perusal of the schedule of expenses in charge 1, I find that out of a total of 12 instances of unsanctioned expenditure, no item of expenditure exceed Rs.3,000/-. As far as charge 2 is concerned, out of 31 instances of unsanctioned expenditure, there are 12 instances of expenditure in excess of Rs.3,000/-, one amounting to 12,510/-. Likewise, as far as charge 3 is concerned, there are no instances of excess expenditure and as far as charge 4 is concerned, out of a total of 10 unsanctioned expenditures, I find 6 instances of expenditure in excess of Rs.3,000/-. Since, in my view, even a solitary instance of incurrence of expenditure in excess of Rs.3,000/- would constitute violation of G.O.Ms. No.25, the punishment imposed stands confirmed. 21. In summary, this writ petition is dismissed. Any arrears of payment of subsistence allowance will be computed and paid over forthwith. No costs.
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