Judgment :- 1. T. Chandrasekaran, the deceased first petitioner filed the writ petition challenging the order of dismissal passed by the first respondent dismissing the original writ petitioner from service as Village Administrative Officer and also the order of the second respondent dated 23.08.2006 made in Na.Ka.H1/23484/06 dismissing the appeal preferred by the original writ petitioner against the above said order of dismissal dated 21.06.1999 passed by the first respondent and prayed that the said orders be quashed and the respondents be directed to reinstate the petitioner into service with all consequential service and monetary benefits by issuing a Writ of Certiorarified Mandamus. 2. During the pendency of the writ petition, the original writ petitioner Chandrasekaran died and his wife and children have come on record as petitioners 2 to 5 to pursue the writ petition. T.Chandrasekaran (the original writ petitioner) faced an enquiry and charges of misappropriation and in the disciplinary proceedings, he was found guilty. But the Disciplinary authority, namely the first respondent, passed an order imposing a penalty of stoppage of three annual increments with cumulative effect. As against the said order imposing the penalty, the original writ petitioner Chandrasekaran did not file any appeal. But the Appellate Authority, namely the second respondent, who got suo motu power of revision, initiated suo motu revisional proceedings, set aside the order of the first respondent and remitted the matter back to the first respondent to conduct fresh enquiry and pass orders. After such remand, the first respondent conducted a fresh enquiry and passed the first impugned order in his proceedings in pa.Mu. A1/2755/97 dated 21/06/1999 dismissing Chandrasekaran from service. The said order was challenged before the second respondent in an appeal. The appeal was dismissed by the second respondent by the second impugned order in proceedings No.Na.Ka.H1/23484/2006 dated 23.08.2006 . Thereafter, the original writ petitioner came forward with the present writ petition for quashing the impugned orders of both the first and second respondents and for a direction to reinstate him into service with all service and monetary benefits by issuing a writ of certiorarified mandamus. 3. Thereafter, the original writ petitioner came forward with the present writ petition for quashing the impugned orders of both the first and second respondents and for a direction to reinstate him into service with all service and monetary benefits by issuing a writ of certiorarified mandamus. 3. Mr.K.Venkataramani, learned senior counsel representing Mr.M.Muthappan, learned counsel on record for the petitioner, would submit that the earlier order of the second respondent passed in the suo motu revision was in violation of the statutory rules and hence, the subsequent proceedings based on the invalid order of the second respondent are also null and void and that hence, the petitioners are justified in challenging the impugned orders in this writ petition. However, it is brought to the notice of the Court that the question of reinstatement in service will be only of academical interest since the delinquent, who was dismissed from service, is no more alive and that hence, if at all the petitioners are able to satisfy the Court on their contention that the order of dismissal of the first respondent was null and void, they would be entitled to the monetary benefits alone. 4. Learned Additional Government Pleader appearing for the respondents would submit that since the earlier order of the second respondent dated 21.06.1998 in the suo motu revision was not challenged by filing a review, the deceased first petitioner was not entitled to challenge the consequential order passed by the first respondent in the fresh enquiry conducted pursuant to the order of remand passed by the second respondent. 5. As an answer to the above contention of the learned Additional Government Pleader, learned senior counsel submits that when the order of the second respondent, as a revisional authority, in the suo motu revision is in total violation of the statutory rules, the said order shall be illegal and void ab initio and that hence, the consequential order passed by the first respondent, which is cited as the first impugned order, is also null and void. Learned senior counsel also pointed out the fact that such contention was raised before the first respondent and it was also made a ground of attack before the second respondent in the appeal filed against the first impugned order and that the second respondent in his capacity as an appellate authority did not consider the said question of law in proper prospective and in view of the same, the original writ petitioner was justified in approaching the Court under Article 226 of the Constitution of India. 6. An attempt was made by the learned Additional Government Pleader to contend that an alternative remedy available to the delinquent was not exhausted before filing the writ petition. Learned Additional Government Pleader submitted that in the 2nd impugned order the delinquent was granted 60 days time for filing an appeal to the Principal Commissioner for Revenue Administration and the Commissioner Revenue Administration; that he had an alternative remedy of appeal and that since the writ petition came to be filed without exhausting the alternative remedy, the writ petition is bound to be dismissed. 7. The said contention is answered by the learned senior counsel by raising the contention that when the jurisdiction of the authority itself is challenged and the order complained of is in total violation of the mandatory provisions of the statutory rules under which he derives the power of suo motu review, the original writ petitioner cannot be non-suited on the ground of availability of alternative remedy, which according to him, was not an effective and efficacious one. It is the further contention of the learned senior counsel that no provision has been made in the rules for preferring an appeal to the Commissioner and that the appeal order itself misdirected the petitioner to believe that a further appeal would lie to the Principal Commissioner for Revenue Administration and the Commissioner Revenue Administration and that flaw in the order itself will be enough to challenge the order in the writ petition. 8. This Court is very much impressed by the said submissions made by the learned senior counsel. Part V of the Tamil Nadu Civil Services (Discipline and Appeal) Rules deals with revision. Rule 36 provides as follows: “36. REVISION 1. 8. This Court is very much impressed by the said submissions made by the learned senior counsel. Part V of the Tamil Nadu Civil Services (Discipline and Appeal) Rules deals with revision. Rule 36 provides as follows: “36. REVISION 1. Notwithstanding anything contained in these rules - (i) the State Government; or (ii) the head of the department directly under the State Government, in the case of a Government servant serving in a department or office under the control of such head of the department, or departments; or (iii) the appellate authority, other than the State Government, within six months of the date of the order proposed to be revised; or (iv) any other authority specified in this behalf by the State Government by a general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on their or its own motion or otherwise call for the records of any inquiry and after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary and revise any order made under these rules, may - (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as they or it may deem fit; Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government Servant concerned has been given a reasonable opportunity of making his representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (iv), (v) ©, (vi), (vii) and (viii) of rule 8 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, if any inquiry under sub-rule (b) of rule 17 has not already ben held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in the said sub-rule (b) of rule 17 which shall be subject to the provisions of sub-rule (c) thereof, and except after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary; Provided further that no power of revision shall be exercised by the head of the department, unless— i. the authority which made the order in appeal, or ii. the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. 2. No proceeding 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.” 9. Sub-Clause (2) of Rule 36 prescribes a condition that no proceedings for revision shall be commenced before the expiry of the period of limitation for an appeal where no appeal has been preferred and where an appeal has been preferred, before the disposal of such appeal. The commencing of suo-motu revision before the expiry of the period of limitation for appeal, as rightly contended by the learned senior counsel for the petitioner, will curtail the right of the delinquent from preferring an appeal as much prejudice would be caused if the Appellate Authority/Revisional Authority initiates suo-motu revision before the expiry of the limitation for such appeal, in which event the grounds on which the delinquent wants to prefer an appeal and other grounds in support of his case would not be placed before the authority commencing the suo-motu revsion. The haste in which the second respondent commenced the suo-motu revision will show that the second respondent did not want to give the opportunity to the first writ petitioner to file an appeal against the order of the disciplinary authority, namely the first respondent. It should also be noted that not only the commencement of the suo motu revision was within the period of limitation for filing the appeal, but also the date of order passed in the suo-motu revision fell within that period of two months. 10. Hence, this Court is satisfied that there is violation of not only clause (a), but also clause (b) of Sub-clause (2) of Rule 36 of Tamil Nadu Civil Services (Discipline and Appeal) Rules. 10. Hence, this Court is satisfied that there is violation of not only clause (a), but also clause (b) of Sub-clause (2) of Rule 36 of Tamil Nadu Civil Services (Discipline and Appeal) Rules. The appellate authority under Rule 23 does have powers even for enhancement of punishment and the second respondent could have waited for the delinquent to file an appeal and then passed an order for enhancement of the punishment if the second respondent was of the view that the punishment imposed was not commensurate with the gravity of the misconduct. In such an event the delinquent would have satisfaction of having placed the materials and arguments in support of his case either for exoneration or for reduction of the punishment. Such an opportunity was lost to him because of the hasty action taken by the second respondent. This Court is of the considered view that the order of the second respondent dated 26.04.1998 is against the mandatory provision of Sub-clause 2 of Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and hence, as rightly contended by the learned senior counsel, the same is liable to be termed illegal having no effect. 11. Similarly, the consequential order passed by the first respondent, which has been cited as the first impugned order, also suffers from the legal infirmity as it is based on an illegal order based on the principle that illegality at the beginning will vitiate all the consequential proceedings. In fact, the same fact was raised before the second respondent in the appeal. But the second respondent did not consider the same properly which resulted in the rejection of the appeal. Therefore, the challenge made to the impugned orders is bound to be sustained. 12. However, the case being one of delinquency of a Government servant accused of misappropriation (may be temporary), it shall not be desirable to simply set aside the impugned orders which shall have the effect of restoring the order of the first respondent reinstating the delinquent into service with the result that the delinquent would be entitled to back wages and other benefits. Because the impugned orders are to be quashed on a technical ground, the proper course to be adopted is to direct the second respondent to follow the provision found in Rule 36 Sub-clause (2) in commencing suo motu revision once again, besides recording the admission made on behalf of the petitioners that the petitioners are not interested in filing an appeal against the original order of the first respondent imposing a penalty of stoppage of three increments with cumulative effect. While doing so, the second respondent could also be directed not to look into any materials collected by the first respondent after the remand of the case to the first respondent for fresh enquiry and that the second respondent himself should take a decision based on the materials placed on record at the time of passing of the first order of punishment. However, everything has become academical and the above said observations are made by this Court in order to provide a guideline to the authorities in future. 13. So far as this case is concerned, in view of the fact that the delinquent is no more, the petitioners 2 to 5, who have come on record on the death of the first petitioner, are interest in securing the terminal benefits of the deceased first petitioner and the learned senior counsel for the petitioner would submit that the petitioners are not interested in going before the first respondent or second respondent once again to challenge the finding holding the delinquent to be guilty of the misconduct and on the other hand, they would be satisfied if this Court itself converts the punishment by modifying the same from one of dismissal from service to one of compulsory retirement, so that petitioners 2 to 5 will be getting the retiral benefits. Learned senior counsel made it a point that while modifying the order into one of compulsory retirement, provision should be made to ensure that the retiral benefits are not affected. 14. Learned senior counsel made it a point that while modifying the order into one of compulsory retirement, provision should be made to ensure that the retiral benefits are not affected. 14. Learned Additional Government Pleader representing the respondents, perhaps being conscious of the flaw in the order of the second respondent made in the suo motu revision and also the possibility of earlier order of the first respondent imposing stoppage of three increments being restored, which will have the effect of ensuring backwages and death-cum-retiral benefits to the legal heirs of the delinquent and also taking into account the fact that the delinquent is no more, submits that this Court, in stead of making the respondents to commence the exercise once again, may itself modify the punishment if it deems fit to do so. This Court is also of the considered view that the modification of the punishment as suggested by the learned senior counsel for the petitioner will meet the ends of justice. For all the reasons stated above, this writ petition is allowed and the order of punishment made by the first respondent in pa.Mu. A1/2755/97 dated 21/06/1999 is modified from one of dismissal from service into one of compulsory retirement without loss of retirement benefits No costs.