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2012 DIGILAW 2806 (MAD)

M. Manikantaprasad v. Govt of Tamil Nadu

2012-07-04

VINOD K.SHARMA

body2012
Judgment :- 1. The petitioner belongs to backward community, and was appointed as Probation Officer, on the recommendation of the Tamil Nadu Public Service Commission on 01.06.1972 in the Tamil Nadu Prison department. 2. In the year 1995, the petitioner was served with charge memo by the Chief Probation Superintendent, on four charges of demand of Rs.350/-(Rupees three hundred and fifty only), Rs.150/-(Rupees one hundred and fifty only) Rs.300/-(Rupees three hundred only) and Rs.2500/- (Rupees two thousand five hundred only) from four persons. 3. The explanation of the petitioner was found to be unsatisfactory, therefore, the Deputy Inspector General of Prison, Madurai was appointed as enquiry officer on 10.06.1996. The enquiry officer instead of proceeding with the enquiry, issued another charge memo under 17(b) of Disciplinary & Appeal Rules on the same charges, which were directed to be enquired by the Chief Probation Superintendent. The second charge memo being patently illegal, was dropped and the enquiry officer was directed to proceed with the enquiry to enquire into the charges originally levelled against the petitioner. 4. The petitioner had apprehension against the enquiry officer, therefore, made a request to the competent authority to change the enquiry officer by alleging bias against him. The request of the petitioner was declined and the enquiry officer was directed to proceed with the enquiry in accordance with law. 5. It is not disputed that the enquiry officer proceeded in accordance with law, and the petitioner was given full opportunity to defend himself. The enquiry officer in the report exonerated the petitioner of the charges. 6. The competent authority did not agree with the finding of the enquiry officer and issued show cause notice to the petitioner to show cause, as to why the petitioner be not held guilty of the charges. 7. The petitioner submitted a reply to the show cause notice. The competent authority after considering the explanation submitted by the petitioner, held the charges proved, and keeping in view of the grave nature of the charges, proposed a punishment of removal from service. 8. As the allegations made against the petitioner were of corruption, the matter was sent to the Tamil Nadu Public Service Commission, as required under the Rule for its approval of the proposed punishment of removal from service. 9. 8. As the allegations made against the petitioner were of corruption, the matter was sent to the Tamil Nadu Public Service Commission, as required under the Rule for its approval of the proposed punishment of removal from service. 9. The Tamil Nadu Public Service Commission did not approve the proposed punishment as there was illegality in holding the the petitioner guilty, therefore, recommended to the Government to cancel the final order of punishment of removal from service and reopen the case afresh. 10. The recommendation of the Tamil Nadu Public Service Commission read as under: "The Recruitment Committee carefully perused the appeal received along with the letter cited in the reference and the concerned records. I am directed to initiate the opinion of the recruitment board as stated hereunder: When the appellant Thiru M.Manikandaprasad served as the probation Officer in the Nagercoil Circle, Departmental action was ordered to be initiated against him for the offence of bribery and corruption in G.O.Ms.No.1065 Home (Prison II) Department, on 6.9.94. In connection with that 4 charges as per Section 17(b) of the Tamil Nadu Public Service Commission (Regulation and Appeal) was leveled against the appellant by the Chief Probation Officer and explanation was called for from him. The questions was annexed along with the charge memo, and the appellant was asked to inform whether he wished for a oral enquiry or personal hearing or both. The appellant had filled in the questionnaire and said that he wanted oral enquiry and personal hearing, both together. But, it became evident that personal hearing had not been conducted. This defect makes this case faulty. Hence, the Board had recommended to the Government to cancel the final order passed by the Inspector General of Prisons and since the case is faulty to reopen the case afresh. The records in this case is sent along with this office letter dt.26.5.99 in No.62/DCD/B-2/99-4 separately. I am directed to send you a copy of the order passed by the Government in this issue to the Board." 11. The State Government instead of accepting the recommendation of the Tamil nadu Public Service Commission, approved the order of punishment. 12. The operative part of the order reads as under: "4. I am directed to send you a copy of the order passed by the Government in this issue to the Board." 11. The State Government instead of accepting the recommendation of the Tamil nadu Public Service Commission, approved the order of punishment. 12. The operative part of the order reads as under: "4. The Government on its own scrutinized the appeal and the connected documents of the Probation Officer Thiru M.Manikanda Prasad together with the recommendations of the Service Commission the Government decided that it can dismiss the appeal preferred by Thiru M.Manikanda Prasad the Probation Officer based on the recommendations of the Commission. As per the aforesaid decisions, the Government had issued orders dismissing the appeal of Thiru M.Manikandaprasad, the Probation Officer." 13. The appeal filed by the petitioner was dismissed. 14. The operative part of the appellate order reads as under: "3. In the letter read above, the Tamil Nadu Public Service Commission had given is opinion as follows: The appellant has stated on the appeal the same averments he had stated in the explanation. He had not stated any new reasons contradicting to the enquiry officer of the Inspector General of Prisons, When a person is serving as a Probation Officer in a Government Office, he himself not adhering to the Rules and accepting bribes for giving conduct certificate for the accused, how is it possible to get something good from such a conduct officer. It is not preferable for such a prison with such an intention to serve in the Government Office. Hence, it can be considered that the appeal is without substance, and shall be dismissed in the said manner and the Service Commission recommended in the said manner to the Government. 4. The Government on its own scrutinized the appeal and the connected documents of the Probation Officer Thiru M.Manikanda Prasad together with the recommendations of the Service Commission the Government decided that it can dismiss the appeal preferred by Thiru M.Manikanda Prasad the Probation Officer based on the recommendations of the Commission. As per the aforesaid decisions, the Government had issued orders dismissing the appeal of Thiru M.Manikandaprasad, the Probation Officer." 5. The copy of the letter of the Tamil Nadu Public Service Commission is sent to Thiru M.Manikandaprasad, the Probation Officer in the reference (3) cited." 15. As per the aforesaid decisions, the Government had issued orders dismissing the appeal of Thiru M.Manikandaprasad, the Probation Officer." 5. The copy of the letter of the Tamil Nadu Public Service Commission is sent to Thiru M.Manikandaprasad, the Probation Officer in the reference (3) cited." 15. The learned counsel for the petitioner challenged the order passed by the appellate authority, on the ground that the impugned order cannot be sustained on the following grounds: (i) The impugned order is the outcome of non application of mind inasmuch as the appellate authority proceeded on the presumption, that Tamil Nadu Public Service Commission had recommended/approved the proposed punishment of removal from service. Whereas, the Tamil Nadu Public Service Commission has held that the enquiry against the petitioner to be defective, and had recommended the matter was required to be looked into afresh in accordance with law. (ii) The second ground of challenge is that the order of the appellate authority is totally non speaking order as it does not deals with the contentions raised by the appellant, in support of his appeal. 16. In support of the second contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in Narinder Mohan Arya vs. United India Insurance Co. Ltd. And others [ (2006)4 SCC 713 ] wherein the Hon'ble Supreme Court was pleased to lay down as under: "32. The appellate authority, therefore, while disposing of the appeal is required to apply his mind with regard to the factors enumerated in sub-rule 2 of Rule 37 of the Rules. The judgment of the civil court being inter parties was relevant. The conduct of the appellant as noticed by the civil court was also relevant. The fact that the respondent has accepted the said judgment and acted upon it would be a relevant fact. The authority considering the memorial could have justifiably came to a different conclusion having regard to the findings of the civil court. But, it did apply its mind. It could have for one reason or the other refused to take the subsequent event into consideration, but as he had a discretion in the matter, he was bound to consider the said question. He was required to show that he applied his mind to the relevant facts He could not have without expressing his mind simply ignored the same. 33. He was required to show that he applied his mind to the relevant facts He could not have without expressing his mind simply ignored the same. 33. An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regard the compliance of the requirements of law while exercising his jurisdiction under Rule 37 of the Rules. 34. In Apparel Export Promotion Council V. A.K. Chopra [ 1999(1) SCC 759 ] which has heavily been relied upon by Mr. Gupta, this Court stated: "16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities." (Emphasis supplied) 35. The appellate authority, therefore, could not ignore to exercise the said power. 36. The order of the appellate authority demonstrates total non-application of mind. The appellate authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression 'consider' is of some significance. In the context of the rules, the appellate authority was required to see as to whether (i) the procedure laid down in the rules was complied with; (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive." 17. The learned Addl. Govt. Pleader, on the other hand contended that the appellate authority had agreed with the finding of the competent authority, therefore, there was no necessity to deal with the same grounds for concurring with the finding of the competent authority. 18. It is also the contention of the learned Addl. Govt. Pleader, that in the subsequent recommendation to the Government, Tamil Nadu Public Service Commission had approved the proposed punishment of removal from service. 18. It is also the contention of the learned Addl. Govt. Pleader, that in the subsequent recommendation to the Government, Tamil Nadu Public Service Commission had approved the proposed punishment of removal from service. Therefore, the petitioner cannot draw any benefit from the recommendation of the Tamil Nadu Public Service Commission. 19. On consideration, I find that this writ petition deserves to succeed. It is not understood as to why the Tamil Nadu Public Service Commission changed its opinion, furthermore, no material has been placed on record in proof of subsequent approval said to have been granted by the Tamil Nadu Public Service Commission to the proposed punishment of removal, nor reasons are forthcoming for changing the earlier recommendation. The contention of the learned Addl. Govt. Pleader therefore, can only be noticed to be rejected, in absence of any order in support of this. 20. The reading of the order passed by the appellate authority shows, that it is totally non speaking order, as it does not deal with the contentions raised by the petitioner. It may be noticed that enquiry officer had exonerated the petitioner of the charges. It was the competent authority who had disagreed with the findings of the enquiry officer. Therefore, it was all the more reasons for the appellate authority to consider the grounds raised by the petitioner and record independent reasons for disagreeing with the contentions raised by the petitioner in the appeal. 21. The impugned order of appellate authority therefore cannot stand the test of judicial scrutiny, in view of the law laid down by the Hon'ble Supreme Court in Narinder Mohan Arya vs. United India Insurance Co. Ltd. And others (supra). 22. Consequently, this writ petition is allowed. The order of the appellate authority is set aside, and the case is remitted back to the respondent No.2, to decide the appeal afresh by taking into consideration all the points raised by the petitioner. 23. Keeping in view of the fact that the petitioner stands removed from service in the year 2002, the appellate authority is directed to take final decision afresh in accordance with law, within three months of receipt of certified copy of this order. No costs.