J. Jayapaul Mohan vs The Secretary To Government Public Works Department

M.M. Sundresh, J.—Two charges have been framed against the petitioner, who was working as Junior Engineer, Works Department while working as a Section Officer of Stanley Section, Chennai of Stanley Sub Division, Chennai-1. Both the charges are inter-connected, which are as follows:

''''Charge 1:

That Thiru.J.Jayapaul Mohan, Junior Engineer, Public Works Department, in his former capacity as Section Officer of the Stanley Section, Chennai of Stanley Sub-Division, Chennai-1, had split up the special repair works in Government Stanley Hospital and Government RSRM Hospital into 48 units each of Rs.50,000/- and below so as to finalise the tenders at Sub Division level with an ulterior motive and thus violated the instructions of the Government issued in G.O.(Ms.) No. 805, Public Works Department, dated 07.06.1976.''''

Charge 2:

That Thiru.J.Jayapaul Mohan, Junior Engineer, Public Works Department, in his former capacity as Section Officer of Stanley Section of Stanley Sub Division, Chennai by committing the said grave irregularity, had failed to maintain absolute integrity and devotion to duty as warranted under Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973.''''

Coming to Charge No. 1, the petitioner gave the following explanation:

''''The delinquent officer has stated that he had not violated the instructions contained in G.O.(Ms.) No. 805, Public Works, dated 07.06.1976 and it was not correct to say that he had split up the 48 works to cost below Rs.50,000/- with an ulterior motive. He had worked in the North Presidency Division, Stanley Sub Section from 06.10.2003 FN to 18.07.2006. The estimates were prepared based on the priority list of works furnished by the Dean of the Hospital. After spot inspection by the Assistant Executive Engineer, the estimates were prepared taking the interest of the patients and the urgent nature of works into consideration and the countersignature of the Dean was obtained and the estimates were submitted to the higher authorities for further course of action. The estimates were approved after inspection by the Executive Engineer and general approval by the Superintending Engineer and after checking the rates. Copies of estimates were furnished to the Section Officer after the tender procedures were over. Thereafter, the contractors were advised to carry out the work on priority basis and on completion of the works, painting work was carried out. In the NSB Building housing 7 floors, works were completed in respect of 18 estimates resulting in reduction in expenditure to a tune of Rs.1 lakh. There was a saving of Rs.50,000/- pertaining to the works carried out to A.O.Block. He was a recipient of Commendation Certificate from the Dean of Stanley Medical Hospital for the meritorious service rendered by him in the execution of works during the year 2004-2005. Therefore, he denied the charge.

The further representation of the delinquent Officer reads as under:

''''The delinquent officer has stated that he was not in charge of the maintenance of Stanley Government Hospital on any occasion. The inquiry officer, without verification of documents such as Tender Sale Register, Tender file, G.O.(Ms.) No. 805, Public Works, dated 07.06.1976 and letter dated 12.04.2011 of the Executive Engineer, North Presidency Division and the copy of priority list which were not cited in the Annexure III of the charge memo and he was not allowed to peruse the same. The inquiry officer himself admitted that the instructions issued in G.O.(Ms.) No. 805, Public Works, dated 07.06.1976 would apply only for original works and there was no loss caused to the Government because of the estimates having been prepared by the delinquent officer. The estimates prepared by him below Rs.50,000/- were submitted to his higher officers after getting the countersignature of the Dean of the Hospital. The contractors were nominated thereafter. If the estimates prepared by him were not correct, his higher authorities would have taken action against him. Therefore, the charge was not sustainable. The charge was originally intended to Thriu.R.Bharathi, formerly Executive Engineer and the name of the delinquent officer was included with a view to maligning his reputation based on the petitions submitted by certain contractors. The charges were framed out of frustration. Therefore, he denied charge.''''

The Enquiry Officer, though accepted the submissions made by the petitioner that the Government Order passed in G.O.(Ms.)No. 805 Public Works Department, dated 7.6.1976 does not have any application to the existing buildings, none the less found Charge No. 1 as proved on the ground that there were grounds to infer that the petitioner has acted in collusion with the Executive Engineer. The disciplinary authority viz., the respondent accepted the findings of the Enquiry Officer and imposed the punishment. The review petition was dismissed so far as the findings are concerned. However, the punishment was modified based upon the recommendation made by the Tamilnadu Public Service Commission. Challenging the same, the present writ petition has been filed.

Learned counsel appearing for the petitioner submitted that after having accepted that the G.O.(Ms.)No. 805 Public Works Department, dated 7.6.1976 has got no bearing to the case of the petitioner, the respondent ought not to have imposed the punishment. When there is no bar in law for the preparation of estimate in a particular manner, the petitioner cannot be found fault with, especially, when there is no financial loss. The respondent has not considered the explanation made by the petitioner vis-�-vis the Enquiry Officer''s report. Therefore, the order impugned is liable to be set aside.

Though the writ petition is pending for nearly one year, no counter affidavit has been filed by the respondent. Therefore, this Court is inclined to proceed with the matter based upon materials available on hearing the learned Government Advocate appearing for respondent.

Per contra, learned Government Advocate appearing for the respondent submitted that the petitioner was given sufficient opportunity to put forth his case. The respondent has considered the report of the Enquiry Officer vis-�-vis the explanation given by the petitioner for coming to the conclusion. What is required in a Departmental proceedings is preponderance of probability and therefore no interference is required with the order impugned.

Charge No. 1 is that the petitioner has violated the Government Order passed in G.O.(Ms.)No. 805 Public Works Department, dated 7.6.1976. When the Enquiry Officer himself is of the view that the said Government Order has no application then the said charge cannot sustain in the eye of law. Admittedly, the building in question is an old building. Therefore, there is no mandate imposed on the part of the petitioner to see to it that the Government Order passed on 7.6.1976 is to be complied with. There is no bar in law for the petitioner to split up the special repair works. It is specific case of the petitioner that the said practice has been followed for number of years. He has also furnished list of works executed by Stanley sub-division during the years 1997-98, 1999-2000 and 2000-2001. The Enquiry Officer has put the entire onus on the petitioner to disprove that he has not acted with ulterior motive. In a departmental proceedings, it is for the Department to prove the charges. The Enquiry Officer ought to have asked the Department to prove that the petitioner has acted with ulterior motive, especially, when the Government Order concerned is not applicable to the petitioner''s case. Therefore, this Court is of the view that the Enquiry Officer totally misdirected himself, which was also wrongly relied upon by the respondent. The petitioner has given a detailed explanation. A perusal of the order impugned would show that the Government has merely accepted the report of the Enquiry Officer and found the charges as proved. As the order impugned has got civil consequences, this Court is of the view that the same cannot be sustained in the eye of law for want of adequate reasons and consideration of proper materials including the explanation given by the petitioner. Furthermore, as opined by the Tamil Nadu Public Service Commission, there is no loss, which has been caused by the action of the petitioner. There is no sufficient material to hold that the petitioner has acted with ulterior motive. Considering the above, this Court is inclined to set aside the order impugned.

Accordingly, the order impugned is set aside. Consequently, the petitioner is directed to make a request to the respondent seeking resultant benefits. As and when such request is made by the petitioner, the respondent shall pass appropriate orders within a period of eight weeks from the date of receipt of copy of this order. The writ petition is allowed accordingly. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.