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Dr.P. Ramar Vs. The State of Tamil Nadu, rep. by its Secretary to Government, Chennai and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberWrit Petition(MD) No. 8676 of 2008 & 8001 of 2010
Judge
AppellantDr.P. Ramar
RespondentThe State of Tamil Nadu, rep. by its Secretary to Government, Chennai and Others
Excerpt:
.....joint director of animal husbandry, tuticorin, stating that he has been appointed as a member of purchase committee for 10% siddha and ayurvedic medicines during 2001-2002. the then regional joint director of animal husbandry, tuticorin, dr.n.uthanumalaiyan, was the chairman of the purchase committee. though there were guidelines regarding the role of purchase committee and the manner in which they are expected to function, nothing was informed to them. as a veterinary assistant surgeon, he was not expected to know the guidelines issued by the government regarding the functions of such committee. though it is expected on the part of the then regional joint director of animal husbandry, tuticorin, to give them all the guidelines and other details as to how and in what manner, the.....
Judgment:

(Prayers in W.P(MD)No.8676 of 2008 : Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records relating to the impugned order vide G.O(D)No.224, Animal Husbandry, Dairying and Fisheries (AH-1) Department, dated 01.07.2008 passed by the first respondent.

W.P(MD)No.8001 of 2010 : Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus to direct the second respondent to include the petitioner's name in the promotional panel prepared by the Department for 2009 and promote the petitioner placing his name above his immediate junior.)

Common Order

1. The writ petition in W.P(MD)No.8676 of 2008 has been filed to challenge the impugned order vide G.O(D)No.224, Animal Husbandry, Dairying and Fisheries (AH-1) Department, dated 01.07.2008 passed by the first respondent.

2. The writ petition in W.P(MD)No.8001 of 2010 has been filed for issuance of a Writ of Mandamus, directing the second respondent to include the petitioner's name in the promotional panel prepared by the Department for the year 2009 and promote the petitioner by placing his name above his immediate junior.

3. Both the writ petitions were taken up together for hearing and all the respondents agreed for the same.

4. The case of the petitioner is that while he was working as Assistant Veterinary Surgeon at Pudukottai, Tuticorin District, he has received a communication from the then Regional Joint Director of Animal Husbandry, Tuticorin, stating that he has been appointed as a Member of Purchase Committee for 10% Siddha and Ayurvedic Medicines during 2001-2002. The then Regional Joint Director of Animal Husbandry, Tuticorin, Dr.N.Uthanumalaiyan, was the Chairman of the Purchase Committee. Though there were guidelines regarding the role of Purchase Committee and the manner in which they are expected to function, nothing was informed to them. As a Veterinary Assistant Surgeon, he was not expected to know the guidelines issued by the Government regarding the functions of such Committee. Though it is expected on the part of the then Regional Joint Director of Animal Husbandry, Tuticorin, to give them all the guidelines and other details as to how and in what manner, the Committee is expected to function as per directions of Government, nothing was communicated to the petitioner or the other two Members of the Committee. In fact, the members of the committee were asked to prescribe the names of Ayurvedic and Siddha Medicines, which are more required and useful to the Dispensaries in the Region. Admittedly, the Committee met only ones to prescribe few medicines, which are all useful and required for the Dispensaries.

5. It is further case of the petitioner that as stated earlier, except suggesting the names of medicines, the petitioner and other members have no other role to play. However, the petitioner received charge memo in Letter No.17427/AH1/2003-4, dated 1.8.2004, from the Secretary to Government containing three charges, which reads as follows:-

Charge-I

That the said Dr.P.Ramar, while working as Veterinary Assistant Surgeon, Veterinary Dispensary, Pudukottai, Thoothukudi District and also as Purchase committee member for 10% Siddha and Ayurvedic medicines in the year 2001-2002 has not followed tender procedures/guidelines issued by the Director of Veterinary Services, Chennai 6.

Charge-II

That while working in the aforesaid office and during the aforesaid period he had purchased costly medicines which are not normally used in Government Veterinary Dispensaries.

Charge-III

That while working in the aforesaid office and during the aforesaid period he has received medicines without the label as State Government Supply-Not for Sale from M/s Vet Med Agencies, Theni, as against the instructions.

6. For the abovesaid charges, the petitioner has given a detailed explanation on 28.03.2005 and he has denied each charges as follows:-

Charge No.I

I deny this charge. I submit that the Joint Director of Animal Husbandry, Thoothukudi in his reference No. 819/B3/2001 dated 12.03.2002 has constituted a committee for the selection of Siddha and Ayurvedic Medicines. Myself had been included in the committee as member. The meeting of the committee was convened by the Chairman of the committee (i.e.,) Joint Director of Animal Husbandry, Thoothukudi on that date itself (i.e.,) 12.03.2002. The committee has selected certain siddha and Ayurvedic medicines as per the instructions given by the Director of Veterinary Services, Chennai. The Director of Veterinary Services, Chennai had issued certain guidelines with regard to the purchase of Siddha and Ayurvedic medicines. Guidelines No.12 says that the requirements of medicines should be assessed and then a committee with Regional Joint Director as chairman should be formed for the purchase covering different varieties of drugs. As such it is the duty of the Joint Director of Animal Husbandry, Thoothukudi to call for the tenders, receiving tenders, preparation of tabulation and place them before the committee for the selection of medicines. As a member of the committee I cannot call for tenders and receive the tenders etc. In as much as myself is not empowered for the work of calling of tenders, receiving tenders etc. I am not responsible for this charge.

Moreover, the Joint Director of Animal Husbandry, Thoothukudi is having his office at Thoothukudi with sufficient staff members such as Section Superintendents, Section Assistants, Manager, Specialist (In the cadre of Assistant Director) etc. The Section Assistant, Section Superintendent, Specialist have to observe the formalities with regard to the purchase (i.e.,) calling of tenders/quotations, receiving tenders, preparation of tabulation statements and place them before the committee. It is not the duty of the committee to do such things.

In as much as I am not responsible for the charge, I request that this charge may kindly be dropped.

Charge No: II

I deny this charge. I submit that the Director of Animal Husbandry has issued guidelines for the purchase of siddha and Ayurvedic medicines. The following are the guidelines with regard to cost of medicines.

6) The prices quoted shall not in any case exceed the controlled price if any fixed by the Central/State Government and the MRP.

11) Should purchase variety of drugs and not a single drug.

13) The medicine purchased should be from the lowest quotation without compromising on the quality.

I submit that there is no ban for purchase of costly medicines. Varieties of drugs should be purchased as per guidelines No.11 of the Director of Animal Husbandry. There is no instructions that medicines which are normally used in Government Veterinary Dispensaries should be selected. Hence, the charge that costly medicines which are not normally used in Government Dispensaries had been purchased is not correct. Moreover the medicines Entrovet had been supplied to the Dispensaries during previous years. Proctives Bolus is a newly introduced product for managing Vaginal prolaps during pregnancy. Herbostrong Powder has been introduced in 10 grams pocket. Other products are 50 grams to 100 grams for one dose. Siddha medicines had been selected according to local need. In Annexure II it has been pointed out that the five medicines appeared to be costly. It is not known how these medicines are defined costly. It has not been well established both in Annexure I and II. According to the instructions issued for Tamil Nadu Civil Services (Discipline and Appeal) Rule, charges should be specific, definite and clear. This charge (No.II) is not specific and definite since it has pointed out that 5 medicines were purchased during 2002-2003 appeared to be costly . Since I am not responsible for this charge, I request that this charge may kindly be dropped.

Charge No.III

I deny this charge since I had not received the medicines. My duty as a member of the committee constituted for the selection of Siddha and Ayurvedic medicines was over after committee meeting (i.e.,). Selection of Siddha and Ayurvedic medicines. The meeting was convened on 12.03.2002. I was not also entrusted with the work of receiving the medicines. It is the look out of the officer concerned who received the medicines, to see whether lable State Government Supply - Not for sale are affixed or not. Since I am not responsible for this charge the charge may kindly be dropped.

7. Having regard to the nature of charges, the Government referred the matter to the Tribunal for Disciplinary Proceedings, Tirunelveli, for taking oral enquiry under Section 17(A) of Tamil Nadu Civil Services (Disciplinary and Appeal) Rules and the matter was ultimately enquired into by the Tribunal for disciplinary proceedings, Nagercoil, presided over by the Special Commissioner and Commissioner for Disciplinary proceedings, Nagercoil. The Tribunal conducted a detailed enquiry and examined several witnesses, apart from receiving records and documents submitted by the Department in support of charges framed against the delinquent officers viz., the Regional Joint Director of Animal Husbandry, Tuticorin, the Assistant Director, Animal Husbandry, Tuticorin, Veterinary Hospital, Tuticorin, and the petitioner also. The Tribunal specifically found that the Members of the Committee had limited assignment and they had not been given any assignment to call for tender. The Tribunal specifically found that the guidelines issued by the Director of Veterinary Services were not given to the Members of the Committee, including the petitioner. The decision of the Committee was only to the effect that the approval given to the medicines prescribed by the Committee is subject to the rules. In fact, the Tribunal also found that it is the duty of the Office of the Regional Joint Director and the Regional Joint Director, to follow tender procedures and guidelines. Since the members of the committee had a limited role in selecting the medicines, all the charges framed were found as not proved against the Members of the committee. However, having regard to the responsibilities of the Chairman of Committee, the charges were held as proved against him.

8. The petitioner further stated that after detailed enquiry, the Tribunal has submitted his report on 29.11.2005 to the Government. Pursuant thereto, on 09.09.2007, the petitioner received a communication from the Special Commissioner and Secretary to Government, the first respondent herein, stating that the Government has agreed with the findings of the Enquiry Officer insofar as it relates to Charge No.2 and that the Government did not approve the findings of the Enquiry Officer regarding charge Nos.1 and 3. Therefore, the petitioner was asked to give further representation regarding the findings relating to Charges 1 and 3. In the said communication, the reason for deviation from the findings of the Enquiry Officer is given, as hereunder:-

The Inquiry Officer has held charges No.1 and 3 as not proved. Both these charges are that the Accused Officer has not followed tender procedure/guidelines in the capacity of purchase committee member. As a purchase committee member, the Accused Officer has the same responsibility as that of the purchase committee Chairman Dr.Uthanmmallayan (A.O.1) in following the tender procedures/guidelines. The Inquiry Officer has erred by holding these charges as not proved, when the same Inquiry Officer has held the same charge against the purchase committee Chairman Dr.Uthanumallayan (A.O.1) as proved.

9. On receipt of the said communication, this petitioner has sent further representation on 12.10.2007, pointing out the limited role of the Purchase Committee and the fact that the guidelines issued by the Director of Veterinary Services had never been given to the members, namely, the petitioner and other two members. Inspite of his explanation, dated 12.10.2007, the Government have issued G.O(D)No.224, Animal Husbandry and Dairying and Fisheries Department dated 01.07.2008, stating that the Charges 1 and 3 are held as proved against the petitioner and that the Government have decided to impose a punishment of stoppage of increment for a period of one year without cumulative effect. Challenging the said impugned order dated 01.07.2008 passed by the first respondent, the writ petition in W.P(MD)No.8676 of 2008 has been filed.

10. It is the further case of the petitioner that though the impugned order was passed on 01.07.2008, the increment cut was not done for a period of one year and for the reasons best known to the respondents, the stoppage of increment was done with effect from 01.07.2009, inspite of his representation to implement the same with effect from the date of the order, so that the period of punishment will be over by 30.06.2009. The promotion panel for Veterinary Assistant Surgeons to the next higher post, prepared for the year 2008 was lapsed. The petitioner is eligible for the promotion to the next higher post, namely, Veterinary Surgeon or Assistant Director of Animal Husbandry. In the seniority list prepared by the Department, finally, his name is found in S.No.265. He came to know that the panel for promotion has been prepared for the year 2009 and the crucial date is 01.07.2009. Though the promotion panel has not been published, he came to know that his juniors in service were included in the panel. However, his name has not been included, because of the currency of punishment of stoppage of increment for one year. The punishment of stoppage of increment for one year is only a minor punishment, hence, he should not be denied further promotion, solely based on the currency of punishment.

11. It is further stated by the petitioner that the Honourable Division Bench of this Court in Subramanian vs. Government of Tamil Nadu reported in 2008(5) MLJ 350 has held that a person suffering a minor punishment of stoppage of increment for two years cannot be denied promotion, solely on the ground of currency of punishment. Hence, the petitioner gave a representation on 15.02.2010 to promote him, by considering his case in accordance with his seniority and in terms of the above Judgment of this Court, which has not considered so far. Hence, the petitioner filed the second writ petition in W.P(MD)No.8001 of 2012 directing the second respondent to include his name in the promotional panel prepared by the Department for the year 2009 and promote him by placing his name above his immediate juniors.

12. A counter affidavit has been filed by the second respondent, in which, it is stated that while the petitioner was working as Assistant Veterinary Surgeon at Tuticorin District, during the year 2001-2002, he was appointed as Purchase Committee Member for purchase of 10% Siddha and Ayurvedic Medicine for the Veterinary Institutions of the Tuticorin Region, by the Regional Joint Director of Animal Husbandry, Tuticorin. As Purchase Committee Member, the petitioner failed to adhere to the tender procedures/guidelines issued by the Director of Veterinary Services and purchased costly Medicines, which were not normally used in the Government Veterinary Institutions and received the medicines without the Label as State Government Supply/Not for Sale from M/s Vet Medical Agencies, Theni, as against the instructions. It is further stated in the counter affidavit that the petitioner as a Member of the Purchase Committee, failed to follow the procedure and guidelines delegated to the tender for the purchase of medicines and the petitioner cannot evade his responsibility as a Purchase Committee Member stating that guidelines were not informed to him. The respondents also stated that as a responsible member, the petitioner ought to have gone through the guidelines and procedures regarding the purchase of medicines and adhered to the procedure. In fact, it is the duty of the Committee to verify the medicines after the purchase following the stipulated conditions for the purchase. Hence, the Committee has whole responsibility for the purchase of medicines as per the Government guidelines.

13. It is further stated in the counter affidavit that if there is an irregularity in the purchase of medicines, whether during the process of tender, selection of medicines and during the receipt of the medicines, all the Members of the Committee are responsible. So, the petitioner as a Member, also was held responsible for the irregularity in the purchase of 10% Siddha and Ayurvedic Medicines and hence, deviation from the findings of the enquiry officer was done and further explanation was called for. The petitioner submitted his further representation on 12.10.2007 stating his limited role in the Purchase Committee and the guidelines issued by the Head of the Department were not given to the members. It is stated by the respondents that as a Committee Member, the petitioner might have gone through the guidelines before approving the tender and he cannot simply say that the guidelines were not supplied to him. In fact, as a responsible member of the Purchase Committee, he might have approved the purchase of medicines only after knowing the guidelines/procedures. On perusal of the report of the appropriate authority and further explanation of the petitioner, the first respondent held the charges 1 and 3 as proved against the petitioner and awarded a punishment of stoppage of increment for one year without cumulative effect as per the impugned order.

14. The respondent stated that as a Member of the Purchase Committee, the petitioner is also liable for irregularity in the purchase of medicines and it is the bounden duty of the petitioner to know the guidelines before signing the decisions of the committee. Hence, the present impugned order has been passed by the Government only after following the procedures procedures laid down in the T.N.C.S. (D and A) Rules and there is no violation of the rules. Therefore, the respondents prayed that these writ petitions are liable to be dismissed.

15. Heard Mr.Niranjan.S.Kumar, learned counsel for the petitioner as well as Mr.Aairam K.Selvakumar, learned Government Advocate appearing for the respondents.

16. It is admitted fact that the petitioner was appointed as a Purchase Committee Member. The respondents, while appointing the petitioner as a Purchase Committee Member, ought to have given to him all the rules and guidelines for purchasing the medicines, but they did not do so.

17. In the Judgment of the Hon'ble Apex Court held in SBI and others vs. Arvind K.Shukla reported in (2004)13 SCC 797, it is made clear that Disciplinary Authority taking a different view is required to record its tentative reasons therefor and give it to the delinquent officer for giving him an opportunity to represent, before recording its ultimate findings. But in this case, the Disciplinary Authority, namely, the first respondent has not given any tentative reasons for taking different view from the findings of the enquiry officer. The relevant portion of the said Judgment is extracted here under:-

To appreciate this contention, we have been taken through the findings of the enquiring officer and Charges 1(a) and 1(d) as well as the reasonings and ultimate conclusion of the disciplinary authority on those two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer an opportunity to represent before it recorded its ultimate findings.

18. Following the abovesaid Judgment, this Court also held in T.Shanmugasundaram vs. Pollachi Municipality reported in (2008)6 MLJ 621 clearly stated that the disciplinary authority has to give reason for differing from the findings of the enquiry officer. In that case held as follows:-

I. As per the Supreme Court, the disciplinary authority has to give reasons for his differing from the Enquiry Officer's conclusions, to the delinquent and give the delinquent an opportunity to submit his objections.

II. Not giving the delinquent opportunity as above, would amount to violation of the principles of natural justice.

In this case, the first respondent has not given any valid reason, but he has stated simply as follows:-

Reason for deviation from the findings of the Commissioner for Disciplinary Proceedings:-

The Inquiry Officer has held charge No.1 and 3 as not proved. Both these charges are that the Accused Officer has not followed tender procedure/ guidelines in the capacity of purchase committee member. As a purchase committee member, the Accused Officer has the same responsibility as that of the purchase committee Chairman Dr.Uhanumallayan (A.O.1) in following the tender procedures / guidelines. The Inquiry Officer had erred by holding these charges as not proved, when the same Inquiry Officer has held the same charge against purchase committee Chairman Dr.Uthaumallayan (A.O.1) as proved.

19. As per the Judgment reported in (2008)6 MLJ 621 (cited supra), it is made clear that when the disciplinary authority is differing with the finding of the enquiry officer, he must have given valid reasons for such difference.

20. In this case, the disciplinary authority has not given any valid reason for his difference. When the petitioner had crossexamined the departmental officer with a suggestion, whether all the Members put their signatures in the Purchase Stock Register and in the purchasing medicine covers, the departmental officer has stated that the Members including this petitioner did not put their signatures. The relevant portion of the cross-examination is extracted hereunder:-

( Tamil )

21. It is made clear that when the Members of the Committee were not involved in this irregularity, how the petitioner is to be held responsible. Therefore, in my considered view, the deviation from the findings of the Tribunal for Disciplinary Proceedings by the Disciplinary Authority, is totally erroneous and on wrong assumption and the Disciplinary Authority has stated that the role of the Chairman of the Committee as well as the Member of the Committee is one and the same.

22. Apart from this, the Disciplinary Authority has not given any valid reason for deviating from the enquiry report and merely because the Chairman of the Committee found guilty of the charges 1 and 3, the Disciplinary Authority ought not to have come to the conclusion that the Members of the committee are also liable for the same charges. The Government have totally failed to appreciate the different role played by the Chairman and the Members in purchasing the medicines. Therefore, the present impugned order of punishment in G.O(D)No.224, dated 04.07.2008 is liable to be quashed.

23. Therefore, the writ petition in W.P(MD)No.8001 of 2010 filed by the petitioner seeking the issuance of a Writ of Mandamus to direct the second respondent to include the petitioner's name in the promotional panel prepared by the Department for 2009 and promote the petitioner placing his name above his immediate junior deserves to be allowed.

24. When the employee is imposed with a punishment of stoppage of increment for even two years without cumulative effect, it could be construed only as a minor punishment and he could not be denied further promotion solely based on the same, if he otherwise fit for promotion. Since the case in hand, the petitioner was imposed with a punishment of stoppage of increment for the period of one year without cumulative effect, which is a minor punishment and he should be considered for further promotion as held in in 2008(5) MLJ 350 (cited supra).

25. Therefore, when the charge memo challenged in writ petition in W.P(MD)No.8676 of 2008 is quashed, this petitioner is entitled to the relief sought for in the writ petition in W.P(MD)No. 8001 of 2010. Accordingly, I am inclined to pass the following orders:-

(a) the impugned order in G.O(D)No.224, dated 01.07.2008 passed by the first respondent is quashed and the writ petition in W.P(MD)No.8676 of 2008 is allowed.

(b) Pursuant to the order of quashing the impugnedorder in G.O(D)No.224, Animal Husbandry, Dairying andFisheries (AH-1) Department, dated 01.07.2008, therespondents are hereby directed to include thepetitioner's name in the promotional panel prepared bythe Department for the year 2009 placing thepetitioner's name above his immediate juniors andpromote him by giving all service and monetary benefits.If promotion is already granted, place him in theretrospective seniority to the next promotion. The saidexercise shall be carried out by the respondents within aperiod of eight weeks from the date of receipt of a copyof this order. W.P(MD)No.8001 of 2010 is disposed ofaccordingly. No costs.


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