@JUDGMENTTAG-ORDER
Mr. Justice K.N.Basha
1. The Petitioner has come forward with this petition seeking for the relief of quashing the order passed by the first Respondent in Se.Mu.Aanai. No. A.A2/29499/2009 dated 27.06.2010 and consequently, directing the Respondents to give promotion to the Petitioner as Forester on par with his juniors.
2. The case of the Petitioner is that the Petitioner joined as a Watcher in the Forest Department in the year 1986 through the employment exchange and he was promoted as Forest Guard on 10.06.1988. On 05.11.2007, a charge memo was issued to the Petitioner by the third Respondent under Rule 17(a) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, containing single charge against the Petitioner and two others. Subsequently, an enquiry was conducted and the Enquiry Officer submitted his report dated 07.05.2008 holding that the allegations of conspiracy is not proved but the charge of dereliction to duty proved against the Petitioner. The Petitioner submitted a detailed explanation to the Enquiry Officer''s report on 28.07.2008. The disciplinary authority imposed a punishment of stoppage of increment for a period of six months with cumulative effect, as per its proceedings dated 15.09.2008. Thereafter, the Petitioner preferred an appeal to the Appellate Authority on 23.12.2008, but the Appellate Authority dismissed the said appeal as per its order dated 28.01.2009. The Petitioner has also filed a revision before the first Respondent against the order of the Appellate Authority on 18.03.2009. As the same was not disposed of, the Petitioner preferred a writ petition in W.P. No. 9842/2010 and this Court by the order dated 05.05.2010, directed the first Respondent to dispose of the revision preferred by the Petitioner, as expeditiously as possible. Pursuant to the order of this Court, the Petitioner was called for personal hearing and thereafter, the impugned order dated 27.06.2010 was passed by the first Respondent enhancing the punishment by imposing a punishment of stoppage of increment for two years without cumulative effect. Being aggrieved against the said order, the Petitioner has been constrained to approach this Court with the above said prayer.
3. Mr. S. Mani, learned counsel appearing for the Petitioner contended that along with the Petitioner two other delinquents have been subjected to departmental proceedings and all the delinquents have been found not guilty in respect of the charges, but only the Petitioner and one other co-delinquent have been awarded with the punishment of stoppage of increment. It is contended that the Disciplinary Authority exonerated the first co-delinquent from all the charges and as far as the Petitioner is concerned, he has been imposed with the punishment of stoppage of increment for a period of two years without cumulative effect and the second co-delinquent has been awarded with the punishment of stoppage of increment for six months without cumulative effect. It is further contended that there is disparity in respect of awarding punishment to the Petitioner and to the other co-delinquents, as one co-delinquent was totally exonerated and the petitioner and the other co-delinquent has been awarded with the punishment of stoppage of increment, resulting in grave prejudice to the Petitioner. The Learned Counsel for the Petitioner submitted that there should not be any different treatment for one delinquent and other co-delinquent. In support of such contention, the Learned Counsel for the Petitioner placed reliance on the following decisions:
(1)
(2)
(3)
4. Per contra, Mr. P.S. Sivashanmugasundaram, learned Additional Government Pleader contended that there is no infirmity or illegality in the impugned order passed by the Respondents. It is contended that the Petitioner as well as one other co-delinquent have been awarded with the punishment of stoppage of increment, but another co-delinquent was exonerated from the charges. It is submitted that only on the basis of the merits of the case, the respective delinquents have been awarded with the said punishment and as such, there is no illegality in passing the impugned order. It is further contended that the issue is relating to forest protection in which the Forest Guard is responsible for the beat and he is answerable for any lapses. Therefore, it is contended that the punishment awarded by the first Respondent cannot be stated to be excessive punishment.
5. This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the impugned order.
6. The fact remains that the Disciplinary Authority has held that the charges were not proved against the Petitioner and other delinquents. However, the Disciplinary Authority awarded the punishment to the Petitioner and the second co-delinquent as stated above and insofar as the first co-delinquent is concerned, he has been totally exonerated from the charges. Therefore, it is crystal clear that different yardstick was adopted in respect of the Petitioner and the second co-delinquent than that of the first co-delinquent and it would certainly amount to discrimination in awarding punishment to the petitioner and other co-delinquents. The learned counsel for the petitioner has rightly placed reliance on the decision of the Hon''ble Apex Court in
5. The argument of the learned counsel for the appellant is that if the persons directly in charge of the construction work were found not guilty of the charge framed, the Appellant, who was indirectly in charge of the work, cannot be punished for similar charge levelled against him. We find force in the argument of the learned counsel for the Appellant and we do not think that the argument of the Learned Counsel for the Respondent that the enquiry officer in this particular case has gone into the merits and has given different finding should be accepted. As pointed out earlier, on the basis of the same set of evidence the officers who were directly in charge of the construction work were exonerated of the charge and we see no reason to pick out the Appellant along for finding him guilty of the charge.
The Learned Counsel for the Petitioner has also rightly placed reliance on the decision of this Court in
9. It is well settled in law that if employees are involved in the same incident, the Department should proceed against all or should not proceed against none. There is no discretion to proceed against some of employees and no action against the other employees, since they are identically placed and their involvement being identical. In the instruction submitted by the Government Advocate, it is not stated as to how the Petitioner''s involvement is not similar to other 28 persons. In the absence of such distinct feature, the proceedings conducted by the Respondent against the Petitioner and imposing punishment on the basis of the charge is illegal and hence the impugned order is set aside.
The principles laid down by the Hon''ble Apex Court and this Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also, as already pointed out earlier, there is a discrimination in respect of awarding punishment between the Petitioner and other co-delinquents.
7. In view of the aforesaid reasons, this Court is of the considered view that as the first co-delinquent has been totally exonerated from the charges, the same benefit should be given to the Petitioner also. Accordingly, this Court is constrained to set aside the impugned order passed by the first Respondent dated 27.06.2010 in proceedings Se.Mu.Aanai. No. A.A2/29499/2009. Consequently, the first Respondent herein is hereby directed to give promotion to the Petitioner as Forester, if the Petitioner is otherwise eligible and entitled for such promotion.
8. With the above direction, the writ petition is allowed. No costs.
