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2006 DIGILAW 2898 (MAD)

A. Sadasivam v. State rep. by the Commissioner and Secretary Home Department & Another

2006-10-30

V.RAMASUBRAMANIAN

body2006
Judgment :- (PRAYER IN W.P.NO.26486 OF 2006 Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining the proceedings No.2742/AB1/88-1 dated 02.06.1995 issued by the Inspector General of Prisons Tamilnadu Madras 2 the second respondent herein and to quash the same and to direct the respondents 1 & 2 to give all concomitant service and monetary benefits. PRAYER IN W.P.NO.28780 OF 2006 Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records pertaining to letter No.49169/Prison II/99-30 dated 03.01.1997 issued by the Secretary to Government, Home (Prison II) Department, Chennai-9 the respondent herein and to quash the same.) The petitioner was appointed as a Probation Officer in the Department of Prisons on 16.12.1974. By a memo dated 20.03.1989, issued in DE No.133/88, the Tribunal for Disciplinary Proceedings framed two charges against the petitioner as well as the office assistant, working in Udhagamandalam jail alleging that there was a demand and acceptance of illegal gratification. 2. After enquiry, the Tribunal for Disciplinary Proceedings held the first charge proved against the petitioner and submitted a report to the Government. By G.O.Ms.NO.259 Home (Prison II) Department dated 21.02.1995, the Government forwarded the report to the Inspector General of Prisons for passing final orders and after furnishing a copy of the enquiry report and calling for further representation from the petitioner, the Inspector General of Prisons passed a final order dated 02.06.1995, imposing a penalty of reduction in the time scale of pay by three stages for a period of two years. 3. As against the said order of penalty, the petitioner filed a statutory appeal dated 10.07.1995. During the pendency of the statutory appeal, the Government issued a Show Cause Notice dated 03.01.1997, proposing to enhance the penalty, in exercise of the powers of suo motto review conferred on the Government under Rule 36 of the Tamilnadu Civil Services (Discipline and Appeal) Rules. 4. Aggrieved by the final order of penalty passed by the Inspector General of Prisons, the petitioner filed OA No.2642 of 1997 and challenging the Show Cause Notice for enhancement of penalty the petitioner filed OA NO.1290 of 1997 on the file of the Tamilnadu Administrative Tribunal. 4. Aggrieved by the final order of penalty passed by the Inspector General of Prisons, the petitioner filed OA No.2642 of 1997 and challenging the Show Cause Notice for enhancement of penalty the petitioner filed OA NO.1290 of 1997 on the file of the Tamilnadu Administrative Tribunal. On the abolition of the Tribunal, both these applications have been transferred to this Court in W.P.Nos.26486 and 28780 of 2006. 5. I have heard Mr.S.Y.Masood learned counsel appearing for the petitioner and Ms.Geetha Thamarai Selvam learned Government Advocate appearing for the respondents. 6. In the writ petition challenging the original order of penalty dated 02.06.1995 passed by the Inspector General of Prisons (the second respondent herein), the grievance of the petitioner is two fold namely: (a) that on the merits of the case, the finding of guilt recorded by the Tribunal for Disciplinary Proceedings is perverse, in view of the fact that the second accused who actually received the money had been found not guilty and the petitioner had been found guilty and (2) that in any case, the second respondent was not entitled to pass the final order on 02.06.1995, in view of the fact that the Tamilnadu Administrative Tribunal had ordered as early as on 11.11.1994 in OA No.4901 of 1992 that the proceedings shall abate if no final order had been passed on or before 31.03.1995. 7. I have carefully considered the above two submissions of the learned counsel appearing for the petitioner. In so far as the first contention of the learned counsel for the petitioner is concerned, it is seen that the petitioner who was employed as a Probation Officer, as well as the Office Assistant who worked under him, were chargesheeted for the misconduct of demand and acceptance of illegal gratification. The charge of demand as against the petitioner was held proved by the Tribunal for Disciplinary Proceedings, though it was found that the tainted currency was actually received by the second accused who was the Office Assistant. The original complaint of demand of illegal gratification was actually made only as against this petitioner and not against the Office Assistant. However the money was actually received by the Office Assistant and his statement that he received the currency only under instructions from the petitioner, was accepted by the Tribunal. The original complaint of demand of illegal gratification was actually made only as against this petitioner and not against the Office Assistant. However the money was actually received by the Office Assistant and his statement that he received the currency only under instructions from the petitioner, was accepted by the Tribunal. Under such circumstances the Tribunal came to the conclusion that the first charge was proved against the petitioner. Therefore the finding of the Tribunal is actually based upon some evidence on record and it cannot be taken to be a case of no evidence at all. The findings of the Tribunal for Disciplinary Proceedings cannot be said to be perverse, since it is based upon the complaint and oral evidence given by the complainant, and the statement made by the second accused that he received the money under the instructions of the petitioner. Therefore I am unable to accept the first challenge to the order of penalty dated 02.06.1995. 8. In so far as the second contention of the learned counsel for the petitioner is concerned, it is seen that originally the petitioner filed an application in OA No.995 of 1990 challenging the order of suspension. In the said application, the Tamilnadu Administrative Tribunal issued a direction to the Tribunal for Disciplinary Proceedings to complete the enquiry within a period of six months. On the ground that the enquiry was not completed within six months the petitioner again filed OA No.4901 of 1992 on the file of the Tamilnadu Administrative Tribunal. In the said application, the Tamilnadu Administrative Tribunal issued a direction to the Tribunal for Disciplinary Proceedings to conclude the enquiry and pass orders on or before 31.03.1995. The Tamilnadu Administrative Tribunal made it clear that if the proceedings are not concluded and final orders not passed before 31.03.1995, the proceedings would automatically abate. However the Tribunal also added a note of caution pointing out that if the proceedings are delayed on account of any act on the part of the petitioner, it was open to the Government to bring it to the notice of the Tribunal and seek appropriate directions. The operative portion of the order of the Tamilnadu Administrative Tribunal reads as follows : "We direct that the proceedings should be concluded and orders passed before 31.03.1995. If that is not done, the proceedings in regard to the applicant will abate. The operative portion of the order of the Tamilnadu Administrative Tribunal reads as follows : "We direct that the proceedings should be concluded and orders passed before 31.03.1995. If that is not done, the proceedings in regard to the applicant will abate. If however, the proceeding cannot be concluded due to any default or dilatory tactics by the applicant, it would be open to the respondents to come before the Tribunal with adequate details before 31.03.1995 and seek directions." 9. Therefore according to the learned counsel for the petitioner, the second respondent failed to pass final orders on or before 31.03.1995 and that therefore the proceedings stood abated on 31.03.1995. Consequently it is the contention of the learned counsel for the petitioner that the final order passed on 02.06.1995 was non-est in the eye of law. 10. However the respondents have filed a detailed reply affidavit, pointing out the sequence of events in this case. From the said reply affidavit it is seen that after the Tamilnadu Administrative Tribunal issued directions on 11.11.1994, directing the completion of the entire proceedings on or before 31.03.1995, the matter was communicated to the Tribunal for Disciplinary Proceedings. The Tribunal for Disciplinary Proceedings completed the enquiry by the end of January 1995 and forwarded its report to the Government. The Government passed orders in G.O.Ms.No.259 Home (Prison II) Department dated 21.02.1995 directing the Inspector General of Prisons to pass final orders. The said Government order was received in the office of the second respondent on 28.02.1995. Immediately the second respondent issued the memo dated 10.03.1995 to the petitioner forwarding the copy of the enquiry report and calling for his further representation against the findings. The further representation of the petitioner against the findings recorded by the Tribunal for Disciplinary Proceedings, was not received by the office of the second respondent till 29.03.1995. Therefore the second respondent addressed a letter to the Senior Standing Counsel to the Government before the Tamilnadu Administrative Tribunal on 30.03.1995 and based upon his advise an application for extension of time was actually filed on 04.04.1995. In the mean time the further representation of the petitioner, though dated 27.03.1995 was actually received by the office of the second respondent on 17.04.1995. Consequently the second respondent passed final orders dated 02.06.1995, imposing the penalty of reduction in the time scale of pay by three stages for a period of two years. In the mean time the further representation of the petitioner, though dated 27.03.1995 was actually received by the office of the second respondent on 17.04.1995. Consequently the second respondent passed final orders dated 02.06.1995, imposing the penalty of reduction in the time scale of pay by three stages for a period of two years. In view of such a clear statement of the sequence of events, I do not think that the second contention of the learned counsel for the petitioner could be accepted. The respondents have actually acted promptly for completing the enquiry and passing final orders on or before 31.03.1995. Though the enquiry was completed by the end of January 1995 itself and the memo forwarding a copy of the enquiry report was also issued on 10.03.1995 itself, the passing of final orders alone had been delayed beyond the cut off date namely 31.03.1995. As per the liberty given by the Tribunal, the second respondent had also moved an application before the Tribunal on 04.04.1995 for extension of time. Under such circumstances, it is not possible to hold that the proceedings actually abated. Moreover the petitioner has already undergone the penalty and he is due to retire on superannuation on 31.10.2006. 11. In view of the above, the challenge of the petitioner to the final order dated 02.06.1995 fails. Accordingly W.P.No.26486 arising out of OA No.2642 of 1997 is dismissed. 12. Coming to the second Writ Petition No.28780 of 2006 arising out of OA No.1290 of 1997, it is seen that as against the final order of penalty dated 02.06.1995, the petitioner filed an appeal on 10.07.1995. Since the original order of penalty was passed by the Head of the Department namely the second respondent, the Statutory appeal was filed by the petitioner to the Government namely the first respondent. Admittedly the said appeal was not disposed of by the Government. But even during the pendency of the said appeal, the first respondent issued the memo dated 03.01.1997, proposing to enhance the penalty. Admittedly the said appeal was not disposed of by the Government. But even during the pendency of the said appeal, the first respondent issued the memo dated 03.01.1997, proposing to enhance the penalty. In Para 11 of the reply affidavit filed by the respondents in OA No.2642 of 1997, the respondents have admitted the fact that the applicant had preferred an appeal against the original order of penalty and that the appeal was under consideration of the Government and that even during the said consideration, the Show Cause Notice proposing to enhance the penalty had been issued by the Government. 13. Therefore on the admitted fact that the impugned Show Cause Notice for enhancement of penalty had been issued even during the pendency of the Statutory appeal, it has to be examined whether the issue of such a Show Cause Notice is in accordance with the rules. 14. Rule 36 of the Tamilnadu Civil Services(Discipline and Appeal) Rules, empowers the State Government, the Head of the Department, the appellate authority, or any other authority to call for the records of any enquiry and to confirm, modify, reduce, enhance or set aside any order of penalty after consultation with the Tamilnadu Public Services Commission. While a period of limitation of six months is imposed upon an appellate authority other than the State Government, to review the orders passed by any Subordinate authority, no such period of limitation is stipulated for the exercise of the suo motto power of review by the State Government or the Head of the Department. 15. However there is a different kind of restriction imposed upon any authority including the Government, for exercise of the suo motto power of review under Sub Rule 2 of Rule 36. The Sub Rule 2 of Rule 36 reads as follows: "(2) No proceedings for revision shall be commenced- (a) Where no appeal has been preferred, before the expiry of the period of limitation for an appeal, or (b) Where an appeal has been preferred, before the disposal of such appeal. (c) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules". 16. The case on hand squarely follows within the restriction imposed under Rule 36(2)(b)of the said rules. (c) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules". 16. The case on hand squarely follows within the restriction imposed under Rule 36(2)(b)of the said rules. As seen from the admitted facts narrated above, the appeal filed by the petitioner on 10.07.1995 was under consideration of the Government and had not been disposed of on the date of which the impugned Show Cause Notice for enhancement of penalty was issued namely 03.01.1997. Therefore the issue of the Show Cause Notice for enhancement of penalty was clearly prohibited under Rule 36(2)(b) of the aforesaid rules. Hence, the impugned Show Cause Notice dated 03.01.1997 is violative of the statutory rules and it is liable to be set aside. Accordingly WP.No.28780 of 2006 arising out of OA No.1290 of 1997 is allowed and the Show Cause Notice for enhancement of penalty dated 03.01.997 is set aside. No costs.