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2003 DIGILAW 1966 (MAD)

C. S. Srinivasan v. State of Tamil Nadu & Another

2003-12-01

K.P.SIVASUBRAMANIAM

body2003
Judgment :- The petitioner prays for the issue of a Writ of Certiorari to call for the records relating to G.O.(D) No.635 dated 16.12.1997 of the first respondent and the consequent order in G.O.Ms.No.55 dated 22.2.2002 and to quash the same. 2. The petitioner claims that he joined the services of the second respondent in the year 1959 and he was promoted as Assistant Executive Engineer in 1979. During 1984, a show cause notice was issued by the then Commissioner of Corporation of Madras dated 8.2.1984. The petitioner gave a reply on 30.4.1984, however, no further action was taken. After a lapse of more than two years, another show cause notice for the same four charges were issued on 23.5.1986. The petitioner requested time for submission of his reply and as the same was rejected, he filed W.P.No.9778 of 1986. The said writ petition was disposed of with a direction to the petitioner to submit his reply by 17.2.1994. Subsequently, according to the petitioner, after a lapse of more than 2-1/2 years, he was dismissed from service holding that he was deemed to have retired on superannuation by order dated 16.12.1997. 3. The following are the charges framed against the petitioner: "Charge-1:- "that, actuated by corrupt motive and in abuse of his position and authority, while he (A.O) was working as Supervisor in the Corporation of Madras and being a public servant, he (Accused Officer) has acquired disproportionate assets beyond his known sources of legitimate income to a tune of Rs.42,790.29 as detailed in the annexures during the check period (viz), 28.4.1967 to 28.7.1974 for which he (Accused Officer) could not satisfactorily account for". Charge-2:- "that, he (A.O) had failed to obtain previous sanction of the provincial Government for the acquisition of house site Nos.7 and 11 (Survey No.2) measuring 1-1/2 grounds at Devachandra, Bangalore North Taluk, Karnataka State from his three sisters for a sum of Rs.300/- each on 25.7.1973 and thereby he (A.O) had contravened the provision under Rule 9(2) of Government Servants Conduct Rules, 1949". Charge-3:- "that he (A.O) had failed to declare his intention with full particulars to the provincial Government of purchasing the Royal Enfield Motor Cycle bearing Registration No.MSX 1202 on 28.4.1976 for Rs.4,650/- from Thiru D.Jegadeeswar, residing at No.4, G.N.Chetty Road, T.Nagar, Madras-17, and thereby he (Accused Officer) had contravened the provision under Rule 8 of Government Servants' Conduct Rules, 1949". Charge-3:- "that he (A.O) had failed to declare his intention with full particulars to the provincial Government of purchasing the Royal Enfield Motor Cycle bearing Registration No.MSX 1202 on 28.4.1976 for Rs.4,650/- from Thiru D.Jegadeeswar, residing at No.4, G.N.Chetty Road, T.Nagar, Madras-17, and thereby he (Accused Officer) had contravened the provision under Rule 8 of Government Servants' Conduct Rules, 1949". Charge-4:- "that he (A.O) in contravention of the Rule 7(d) of Government Servants' Conduct Rules, 1949, permitted his wife Tmt.S.Kamalam to lend a loan of Rs.35,000/- on 24.3.1973 on a pronote to Thiru R.Sadagopan, S/o.Thiru V.R.Ramasamy, No.14-I, Main Road, Indira Nagar, Madras-20 and thereby he (A.O) had contravened the provision under Rule 7(d) of Government Servants' Conduct Rules, 1949". 4. After a due enquiry by the Deputy Commissioner for disciplinary proceedings, the Tribunal held that all the four charges were proved. The content of the charges relate to alleged acquisition of disproportionate assets beyond the known sources of the income of the petitioner and failing to obtain previous sanction of the Government for acquisition of the assets and failure to declare his intention of purchasing a motorcycle and that in contravention of Rule 7(d) of Government Servants' Conduct Rules, he permitted his wife to lend Rs.35,000/- on 24.3.1973 on a pronote, thus contravening the said conduct rules. The Tribunal while holding all the four charges as proved, also observed that the accused Officer himself had admitted that his wife got Rs.22,300/- from Narayana Sekar and Company which was doing business with the Corporation of Madras. With the result, the Government in G.O.Ms.No.162 dated 30.7.1996, after independent examination of the findings of the enquiry, decided to accept the findings of the Tribunal and ordered dismissal of the petitioner from service. Thereafter, by a representation dated 9.9.1996, the petitioner sought for a review of the order dated 30.7.1996 and requested reinstatement in service. 5. In G.O.(D).No.560 Municipal Administration and Water Supply (ME.IV)(1) Department dated 11.11.1997, the Government examined the review petition and decided to allow the review petition by reducing the quantum of punishment. The order of dismissal was set aside. He was however informed that it was decided to pursue the disciplinary action under the Pension Rules and that the proceedings shall be deemed to be under Tamil Nadu Pension Rules. The order of dismissal was set aside. He was however informed that it was decided to pursue the disciplinary action under the Pension Rules and that the proceedings shall be deemed to be under Tamil Nadu Pension Rules. A separate order was issued in G.O.(D).No.561 Municipal Administration and Water Supply (ME.IV)(1) Department dated 11.11.1997 holding that since the petitioner had attained the age of superannuation on 31.1.1997, the Government direct the Corporation that the petitioner shall be deemed to have retired from service on 31.1.1997 on attaining age of superannuation without prejudice to the disciplinary action pending against him. On the same day, on 11.11.1997, the first respondent by letter No.49770/NE.IV(1)/96-7, invited the attention of the petitioner to Rule-9 and the petitioner was directed to explain as to whether he was prepared to admit the guilt and the proposed punishment and that if no explanation was received, further action will be initiated against him on merits. 6. On 24.11.1997, the petitioner had stated that he was not willing to continue to defend and to prove his innocence and that he accepted the order proposed by the Government. The Government examined the contention of the petitioner and in view of the stand taken by the petitioner, the Government decided to confirm the provisional conclusion and to issue final orders. A direction was issued that there shall be a pension cut by one third for life imposed on the petitioner in view of the proved charges. 7. However, the petitioner appears to have sent a representation on 30.8.2001 for reconsidering the said order and as no orders were passed, the petitioner filed W.P.No.21306 of 2001. While disposing of the said writ petition, this Court had directed the first respondent to consider the representation of the petitioner dated 30.8.2001. By order dated 20.2.2002 in G.O.(D) No.55 Municipal Administration and Water Supply (ME-4) Department, the Government considered the representation of the petitioner. It was held that the charges against the petitioner were proved and that however taking a lenient view for the proven charges, the dismissal order was modified ultimately into one of one third of pension cut for life period. The period of suspension was also regularised by the Commissioner. Therefore, the Government felt that there was no reason to interfere with the earlier orders. Hence, the above writ petition. 8. The period of suspension was also regularised by the Commissioner. Therefore, the Government felt that there was no reason to interfere with the earlier orders. Hence, the above writ petition. 8. Mr.S.Doraiswamy, learned counsel appearing for the petitioner has mainly raised the following two contentions:- 1. Government was not the competent authority to dismiss the petitioner from service and hence the order of dismissal dated 30.7.1996 in G.O.Ms.No.162 was beyond the jurisdiction of the Government in having passed the order of dismissal. 2. When the Government decided to set aside the order of dismissal and to proceed further under the Tamil Nadu Pension Rules, the Government ought to have reinstated the petitioner in service, without which the departmental proceedings cannot be initiated. 9. Learned counsel contends that there cannot be a disciplinary proceeding after the petitioner has been permitted to retire from service. In support of the said contention, learned counsel relies on the judgment of a Division Bench of this Court in N.M.SOMASUNDARAM vs. THE DIRECTOR GENERAL OF POLICE ETC. (1997 WRIT L.R. 120). 10. I have considered the submissions of learned counsel for the petitioner. 11. The contention that the Government had no jurisdiction in passing the G.O.Ms.No.162 dated 30.7.1996 has no basis, considering that the disciplinary proceedings were conducted by the Deputy Commissioner for disciplinary proceedings and the enquiry was conducted by the Tribunal. Learned counsel for the petitioner is not disputing the jurisdiction of the Tribunal to enquire into the charges against the petitioner. That being so, inasmuch as the enquiry was conducted by the Tribunal for disciplinary proceedings, it is the Government which is the appropriate authority to pass orders on the disciplinary proceedings. Therefore, I am unable to sustain the first contention raised by the learned counsel for the petitioner. 12. As regards the second submission that the petitioner should have been retained in service and that a specific order to that effect should have been passed before seeking to initiate proceedings under the Pension Rules, it is to be noted that when the order was passed on the representation of the petitioner, the petitioner had attained superannuation on 31.1.1997 itself. Therefore, there was no possibility of reinstating the petitioner in service while passing the order dated 11.11.1997. It is to be borne in mind that the said order in fact came to be passed only on the review petition filed by the petitioner. Therefore, there was no possibility of reinstating the petitioner in service while passing the order dated 11.11.1997. It is to be borne in mind that the said order in fact came to be passed only on the review petition filed by the petitioner. Inspite of the proved charges being of grave nature, the Government had taken a sympathetic view and had decided the punishment to be converted into one contemplated under the Pension Rules. However, the petitioner not being satisfied with that also, again filed a petition for review and the Government considering the case further, by order dated 16.12.1997, modified the earlier order by directing one third pension cut for life. The further review sought for by the petitioner was however rejected by the Government by the impugned order dated 20.2.2002. 13. Having regard to the aforesaid facts, the petitioner cannot be heard to raise the contention that he ought to have been reinstated in service before the proceedings under the Pension Rules were sought to be initiated. As stated earlier, by his own letter dated 24.11.1997, he has informed the Government that he was accepting the order dated 11.11.1997. Having said so, it is neither open to him nor fair on the part of the petitioner to have again sought for review and to have come before this Court complaining that the respondents had no jurisdiction. 14. The fact remains that the petitioner was found guilty of serious charges and was dismissed from service. In spite of the same, a lenient view was adopted and the proceedings were converted into an enquiry under Pension Rules. Not being satisfied also with the said order and ignoring his own letter dated 24.11.1997 accepting the proposal of the Government, he would again seek for a review. Once again the Government adopted a further sympathetic attitude and instead of proceeding with the enquiry under Pension Rules, the punishment was further liberalised by imposing only one third cut of the pension. 15. The aforesaid facts would clearly show that the petitioner is trying to take unfair advantage of the sympathetic attitude adopted by the Government, by raising technical pleas even after having accepted the order of modified punishment by his letter dated 24.11.1997. 15. The aforesaid facts would clearly show that the petitioner is trying to take unfair advantage of the sympathetic attitude adopted by the Government, by raising technical pleas even after having accepted the order of modified punishment by his letter dated 24.11.1997. Having invoked the sympathy of the Government and induced for revocation of the order of removal from service into one of a proceeding under the Pension Rules and a further relaxation of a mere one third cut in the pension and having finally accepted the modified punishment under the Pension Rules, vide his letter dated 24.11.1997, the petitioner cannot be permitted to blow hot and cold. He cannot be allowed to mislead and misdirect the authorities in an unfair manner. 16. Such a conduct on the part of the petitioner cannot be entertained and with the result, I do not find any merits in the contentions raised on behalf of the petitioner. The writ petition is dismissed. No costs.