R.Viswanathan, (Deceased) Vs Government of Tamilnadu

S/o.Late R.Viswanathan, Door No.1/29, Mettu Street, Sukkampatti, Via Valaisaiyur, Salem 636 122. (P2 to P4 Are Substituted As Lrs Of Deceased P1, As Per Order Dated 28.06.2024 In Wmp.16109/2024 In Wp.24525/2018 By Mskj)

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WP No. 24525 of 2018

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Vs

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Petitioner(s)

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Government of Tamilnadu, Rep. by Principal Secretary to Government Commercial Taxes and Registration dept., Secretariat, Chennai600 009.

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2.The Principal Secretary/ Commissioner, Treasuries and accounts, Integrated Finance Dept., Complex, Chennai-600 035.

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Respondent(s)

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PRAYER: Writ petition is filed under Section 226 of the Constitution of India for issuance of a Writ of Certiorarified mandamus to call for the records of the first respondent relating to G.O.(R) No.59, Commercial Taxes and Registration (E2) Dept., dt.28.03.2018 to quash the same and to issue consequential directions to the respondents to reinstate the petitioner in service with all consequential benefits and also regularise the period of suspension and period of forced non-employment from the date of order of Dismissal from service till the date of reinstatement as duty for all to grant him al consequential benefits purposes and to grant him all consequential benefits

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For Petitioner(s): M/s.M.Ravi

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For Respondent(s): Mr.T.Chezhian Additional Government Pleader

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ORDER

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The writ petition has been filed challenging the order of the first respondent in G.O.(R) No.59, Commercial Taxes and Registration (E2) Dept., dt.28.03.2018 and consequently to issue directions to the respondents to reinstate the petitioner in service with all consequential benefits and also regularise the period of suspension and period of forced non-employment from the date of order of Dismissal from service till the date of reinstatement, as “duty” and to grant him all consequential benefits.

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The petitioner was appointed as Office Assistant in the second respondent District Treasury of Accounts Department. During that time departmental proceedings have been initiated against the petitioner under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules on the allegation of embezzlement of a total sum of Rs.97,17,776/- between the period from 19.09.1997 to 23.05.2000 by presenting bogus bills in the District Treasury.

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Mr.M.Ravi, the learned counsel for the petitioner, submitted that the disciplinary proceedings have been initiated against the petitoner in the year 2006 and the petitioner denied the charges by stating that he did not play any role in maintaining the records of his official duty. He submitted that the order

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of punishment has been passed in a mechanical manner and even during the enquiry, the petitioner was not given with due opportunity and the enquiry officer has not appreciated the evidences in a proper perspective. He further submitted that persons who are directly in-charge of affairs themselves have been imposed with the punishment of compulsory retirement in view of the directions given by the Hon'ble Supreme Court to the Division Bench of this Court and the orders came to be passed in W.A.No.1275 and 1276 of 2012 dated 20.02.2024 to modify the punishment of dismissal in respect of the delinquents involved in those matters and by reducing it to a punishment of compulsory retirement.

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Mr.T.Chezhiyan, the learned Additional Government Pleader for the respondents, submitted that the charges against the petitioner were proved and the enquiry officer has filed a detailed discussion in his enquiry report about the same. It is further submitted that even the disciplinary authority had taken into consideration of the essential aspects as evidence for accepting the enquiry report and considering the gravity of the matter, the capital punishment of “dismissal from service” has been imposed.

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The petitioner who has been working as an Office Assistant is seen to have closely associated with the staff who used to handle the TNTC 70 Register. The allegation against the petitioner is that he had an understanding with the other delinquents who have the custody of TNTC 70 Registers and without

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causing due entries in the register, bills have been encashed and on that score a massive sum of Rs.97,17,776/- have been embezzled. It is submitted that the Junior Assistant who is in-charge of TNTC registers have prepared a forged bills list and one of the delinquents namely Baskar had issued tokens even without there being entered in TNTC Registers. The petitioner who has been taking bills to the Treasury and has been handing over the registers and bills to the concerned section, had handed over it without making due entries.It is seen that the petitioner had also involved in making entries some times in the registers though he was working as just an Office Assistant.

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Even though the petitioner had denied his involvements in the concerted embezzlement of misappropriation of funds, the detailed evidence deposed by the witness on the side of the department and answers given by the petitioner, would show his knowledge about the transactions and he had also played an active role seeing the bills disbursed even without entries made in the TNTC Register and managed to get a token from the concerned person. The petitioner knows about the manner in which the bills are prepared and entered in the TNTC register and handed over to the person who is responsible for the purpose of processing the same. Once the token is obtained, that will be the penultimate step for payment. The petitioner did not bring it to the knowledge of his superior officers that the bills are obtained without making entries in the TNTC 70 Registers though he had knowledge about the same.

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The above conduct of the petitioner would show his active co-operation with the other delinquents in getting the false bills passed by the Treasury and thereby gain undue enrichment. So it is not the matter where the petitioner has been found fault without given with any due opportunity. After having furnished the charge sheet, the petitioner was given with the liberty to submit his explanation and he had also participated in the enquiry proceedings. So the enquiry report has been filed by rendering a finding that the charge against the petitioner was proved.

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The petitioner cannot take any advantage that he is working as Office Assistant and he did not have any responsibility to maintain any files and his only job is to take and get the files from table to table. The Office Assistants are also aware of the fact that the Registers are being handed over to one section to another section after having made due entries. Despite the entries were not made in TNTC 70 Register in respect of the bills prepared by the Junior Assistants, the petitioner had obtained the token from the other delinquent who also played active role in concerted design of misappropriating the Government funds.

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In fact a criminal case has been registered in this regard and the delinquent officials including the petitioner who were shown as an accused and later acquitted. But that alone cannot be a factor for finding fault with the findings arrived by the Enquiry Officer for the very reason that the standard of

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proof required for the criminal proceedings is entirely different from the standard of proof required during the departmental proceedings. In the departmental proceedings the standard of proof is preponderance of probabilities and not proof beyond reasonable doubt. So the role played by the petitioner in the manner in which the registers are handled and tokens are obtained, would only show that it is not an action run by a single person but it is a group action with a clear understanding between the for misappropriating the funds by adopting a highly technical method of not making due entries in the register but passing the bill unmindful of the entries and issuing the tokens.

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By being a silent spectator of these actions by anyone who is handing over the register from one section and another section is also responsible for performing the role by having hand in glove with the other persons in charge of the sections.

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As the enquiry has revealed the role of the petitioner where he was also part in seeing the false bills were passed seamlessly for convenient misappropriation of the public funds, I do not find any reason to interfere with the findings of the Enquiry Officer and the acceptance given by the disciplinary authority.

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However, it is to be noted that while exercising the powers of the Court under Article 226 of Constitution of India, on the enquiry reports or

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punishments imposed consequential to the departmental proceedings, as per the observation made by the Hon'ble Supreme Court in Union of India v. P. Gunasekaran reported in (2015) 2 SCC 610, the court cannot exceed the limits

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for interference except when the following factors were found to be present.

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“.. 12.

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(a) the enquiry is held by a competent authority;

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(b) the enquiry is held according to the procedure prescribed in that behalf;

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(c) there is violation of the principles of natural justice in conducting the proceedings;

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(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

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(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

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(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

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(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

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(h) the disciplinary authority had erroneously admitted inadmissible

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evidence which influenced the finding;

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(i) the finding of fact is based on no evidence.

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13.In the instant case I do not find any reason to interfere with the findings of the Enquiry officer or the appreciation made by the disciplinary authority for accepting the report of the enquiry officer. But so far as the punishment of dismissal is concerned, it is brought to the notice of the Court that the co-delinquents who were in-charge of the registers, have got an order in their favour in pursuant to the directions from the Hon'ble Supreme Court by getting their punishment of dismissal modified as “compulsory retirement”. The relevant paragraph in the judgment of the Division Bench in W.A.Nos.1275 & 1276 of 2012 dated 20.02.2024 is extracted hereunder:

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“ 32. In the result, we dispose of all these cases with the following orders:

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 That the major penalty of dismissal of service imposed against these delinquents in the respective cases by the orders of the employer/State/Government are hereby modified into compulsory retirement with two third pension and gratuity benefits to each of the delinquents.

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 As a sequel there shall be a direction to the State/Employer to impose such a punishment of compulsory retirement and accordingly, calculate the two third pension and gratuity with arrears payable to these delinquents and pay the same to these delinquents within a period of three months from the date of receipt of a copy of this order.

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 It is made clear that they are also entitled and continue to get two third pension till their entitlement.”

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Taking into consideration of the above judgment and also the fundamental principle that when co-delinquents have been imposed with a kind of punishment, one delinquent among the group cannot be shown with any discrimination of getting a capital punishment of dismissal. As the punishment against the other delinquents have been reduced from “dismissal from service” to “compulsory retirement”, I feel it is appropriate to extend the same benefit to the petitioner also.

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In the result the writ petition is partly allowed and the petitioner is extended with the same benefits as granted in the judgment dated 20.02.2024 made in W.A.Nos.1275 & 1276 of 2012. No costs. Connected miscellaneous petition is closed.

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10-03-2025

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Index:Yes/No Speaking/Non-speaking order Internet:Yes Neutral Citation:Yes/No bkn

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To

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