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Judgment
P.K. Mishra, J.—Heard the learned counsel appearing for the parties. The punishment imposed on the petitioner in a departmental
proceedings is being challenged.
The petitioner joined service as a Junior Engineer in the year 1975. On 25.7.1979 he was posted at Ooty and he relieved the second
respondent. On 31.10.1982, he handed over charge to his successor. It appears that before the petitioner had joined at Ooty, several items of
materials such as, cement bags and rods had been given on loan by previous incumbents to other organisations such as Ooty Municipality and
Tamil Nadu Adidravidar Housing and Development Corporation Limited and other organisations belonging to the Government of Tamil Nadu and
those items had not been recovered. It appears that during his tenure, the petitioner recovered 403 bags of cements and subsequently, the
petitioner, while handing over charge to his successor namely, Mr. R.Sabapathy, it is indicated that other items are to be recovered from the
various departments. It further appears that in the year 1986, during audit, objection was raised regarding non-recovery of those items from the
various departments. Subsequently, after a decade had passed, the Department thought it fit to initiate departmental proceeding against the present
petitioner and the second respondent. The present petitioner filed his explanation denying his liability in the matter. The Enquiry Officer in his report
initially fixed responsibility on the second respondent, but subsequently, on the suggestion of the General manager, the Department decided that the
liability to pay the money representing the value of the items which had not been recovered should be apportioned between the second respondent
and the present petitioner in the proportion of 2:1. It seems that the second respondent before his retirement has paid Rs.45,514/=. Subsequently,
the petitioner has been called upon to pay the balance amount of about Rs.22,757/=. It is also directed that there should be stoppage of increment
of the petitioner for six months without cumulative effect. Notice has also been given to the petitioner to pay the amount, failing which he would be
suspended. All these orders are being challenged in the present writ petition.
A counter affidavit has been filed justifying the action taken against the present petitioner. In the course of hearing of the writ petition, the learned
counsel representing the Department was called upon to produce the relevant files. The learned counsel produced certain files. In the counter
affidavit, a stand has been taken that the petitioner had admitted his liability and therefore it is not open to the petitioner to challenge the same.
On a perusal of the files, I do not find any document, wherein the petitioner has admitted his liability. The counsel for the Department has
referred to Page 31 of the file bearing No.A/5/355/84, which purports to be the minutes of the joint discussion of the Executive Engineer with the
present petitioner and the second respondent. In the said Minutes, it is only mentioned that both the Assistant Executive Engineers (meaning
thereby the present petitioner and the second respondent herein) have requested for time upto 31.5.1990 to settle the issue finally. By no stretch of
imagination, this can be considered as an admission on the part of the petitioner to pay the amount claimed.
It is not disputed that the materials in question had been given on loan not by the petitioner, nor even by the second respondent, but by some
other officer before the petitioner had joined at Ooty. It is also not disputed that on many occasions similar transactions happened between the
various departments of the Governemnt and in fact on many occasions, other departments had also given materials to the first respondent. To his
credit, the petitioner, during his tenure of office, recovered 403 bags of cement. If there would have been an enquiry during the incumbency of the
petitioner, or even within a reasonable period of his transfer, it would have been possible on the part of the petitioner to produce the relevant
materials to show that he had not given the materials on loan and taken reasonable steps and as such he is not directly responsible for non recovery
of the materials.
There is no allegation that the materials in questions have been misappropriated either by the petitioner or by the second respondent. It may be
that for a long period the materials were not recovered. But for that, it would not be justifiable to hold the petitioner responsible. The audit
objection itself was made in the year 1986 and there was no justification for the Department to remain quiet for a further period of ten years before
initiating the departmental proceedings. It is also not disputed that at the time of handing over of charge, the petitioner had also indicted about non
recovery of the materials. If the petitioner is now held to be responsible for non recovery, the persons who had given the materials on loan as well
as the successors in office are also to be held responsible and there is no justification to initiate proceedings only against the petitioner or the
second respondent. In fact, there is no allegation of misappropriation. The fact remains that the materials in questions had been borrowed from one
Department of the Government by another Government Department and in that sense, it cannot be said that any loss had been caused to the
Government. Keeping in view all these aspects, I do not think the first respondent was justified in imposing the punishment on the petitioner.
Therefore the order of punishment as well as the order relating to the recovery of the amount are quashed. Consequently, all the four impugned
orders are set aside.
The learned counsel appearing for the second respondent submitted that money has been recovered from the second respondent without
justification. Since the matter has not been challenged by the second respondent, I do not express any opinion on that aspect. However, it would
be open to the second respondent to file appropriate representation before the first respondent and on such representation, if filed may be
considered on its own merits and in accordance with law.
Writ Petition is allowed. No costs. Consequently, connected WMP is closed.