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2014 DIGILAW 895 (MAD)

K. Vijayal v. State of Tamil Nadu

2014-04-10

T.S.SIVAGNANAM

body2014
Judgment : 1. In this Writ Petition, the petitioner seeks for issuance of a writ of Certiorarified Mandamus to quash the order passed by the first respondent, dated 18.02.2011, and to direct the respondents to extend all service benefits to the petitioner in the cadre of District Revenue Officer. By the impugned order, the first respondent imposed a punishment of stoppage of increment for a period of one year without cumulative effect. 2. The petitioner was functioning as a Deputy Collector and during 2005-06, she was posted as Co-ordinator-cum-Special Tahsildar (Land Acquisition) Outer Ring Road Project, Unit-6, Chennai -92, a charge memo was issued to the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, (Rules), containing three articles of charge, which reads as follows:- Charge No.1:- The 4(1) notification for 2.45.5 hectares of dry and manavari lands in Attanthangal village (Block-II) Ponneri Taluk, Tiruvallur District for the Outer Ring Road Project, approved by the Collector, Tiruvallur on 20.10.2005, was published in the District Gazette on 29.12.2005, dailies on 21.03.2006 and the locality on 22.03.2006 (i.e.,) 84 days were taken to publish this primary statutory notification u/s 4(1). Tmt.K.Vijayal, formerly Co-ordinator cum Special Tahsildar (Land Acquisition), Outer Ring Road Project and now Deputy Collector had failed to ensure the completion of all the three modes of publication within the time limit of 60 days prescribed in Land Acquisition Act 1/1894 and thus she was responsible for the lapse of the said 4(1) notification due to belated publication. Charge No.2:- By the above Act, Tmt.K.Vijayal, formerly Co-ordinator cum Special Tahsildar (Land Acquisition), Outer Ring Road Project and now Deputy Collector was responsible for the issue of revised 4(1) notification afresh, which caused the following financial loss to Government. 1. Advertisement charges for the publication – Rs.3,87,520.00 of 4(1) notification in the Tamil dailies on 21.03.2006 2. The difference between the land cost adopted - Rs.25,66,242.00 during the old 4(1) notification and revised new 4(1) notification. Total Loss - Rs.29,53,762.00 Charge No.3:- Thus, Tmt.K.Vijayal formerly Co-ordinator cum Special Tahsildar (Land Acquisition), Outer Ring Road Project and now Deputy Collector had failed to perform her official duties sincerely as expected of her and there by violated Rule 20(1) of Tamil Nadu Government Servants Conduct Rules 1973. 3. Total Loss - Rs.29,53,762.00 Charge No.3:- Thus, Tmt.K.Vijayal formerly Co-ordinator cum Special Tahsildar (Land Acquisition), Outer Ring Road Project and now Deputy Collector had failed to perform her official duties sincerely as expected of her and there by violated Rule 20(1) of Tamil Nadu Government Servants Conduct Rules 1973. 3. The petitioner submitted her explanation on 22.07.2009 in respect of the first charge, where the allegation was the petitioner failed to ensure the completion of all three modes of publication under the provisions of the Land Acquisition Act, within a period of 60 days and was responsible for the lapse of the notification under Section 4(1) of the Act. The petitioner would state that the Land Acquisition Officer expressed urgency and she passed on the file for publication and while calling for the details of Gazette Publication, the Land Acquisition Officer or Special Tahsildar (Land Acquisition) has not given the particulars and compelled the petitioner to pass on the file for publication in the newspaper, as it is very urgent. It is further stated that the Land Acquisition Officer informed the petitioner that she alone is responsible for any delay or lapses and the petitioner should pass on the file. 4. In respect of Charge No.2, where it was alleged that there was financial loss to the Government on account of republication of the notification. It is submitted by the petitioner that the Land Acquisition Officer is solely responsible for the said allegation and the petitioner cannot be held liable for the same. 5. Insofar as Charge No.3, in which it is alleged that the petitioner violated Rule 20(1) of the Tamil Nadu Government Servant Conduct Rules, 1973. The petitioner denied the allegation in the charge and reiterated the explanation given for Charge Nos.1&2 and stated that there was no violation of Rule 20(1). Further, the petitioner would state that a writ petition was filed before this Court in W.P.No.7553 of 2000, challenging the acquisition proceedings, by a land owner in Ariyappancheri village and the petitioner attended the Court, met the Government Pleader personally and handed over the draft counter affidavit. The said writ petition was dismissed by this Court with cost after examining the land acquisition files thoroughly and the procedure was found to be fully complied with. That apart, the petitioner also furnished her service particulars to show that she has worked diligently through out her service. The said writ petition was dismissed by this Court with cost after examining the land acquisition files thoroughly and the procedure was found to be fully complied with. That apart, the petitioner also furnished her service particulars to show that she has worked diligently through out her service. Further, the petitioner cited several instances in which she has exercised care and caution while fixing the compensation amount to demonstrate that she has absolutely devotion to duty. The disciplinary authority not satisfied with the explanation, directed domestic enquiry to be conducted. The petitioner participated in the domestic enquiry and stated that the mandatory and rudimentary principles required to be followed, were not followed. The enquiry officer submitted his findings dated 02.11.2009,. In respect of charge No.1, the enquiry officer held that it is the primary duty of the petitioner to get particulars and bring it to the notice of the Special District Revenue Officer (Land Acquisition) and therefore, the charge is proved. 6. In respect of Charge No.2, the enquiry officer held that the petitioner is jointly responsible for payment of the advertisement charges and the said charge is partly proved. Sofar as Charge No.3, the enquiry officer held that since charge Nos.1 & 2 are held proved, Charge No.3 stands proved. It is to be pointed out that the enquiry officer failed to note that he has rendered a finding that charge No.2 is only partly proved. Due to the pendency of the disciplinary proceedings, the petitioner's name was deferred from inclusion in the panel of District Revenue Officers for the year 2009, which was approved by G.O.Ms.No.266, dated 20.03.2009. Therefore, the petitioner submitted a representation through proper channel to the first respondent on 19.05.2010, to drop the charges and also enclosed her further explanation to the enquiry officer's report. The first respondent after considering the findings of the enquiry officer and further explanation of the petitioner, passed the impugned order observing that after careful and independent examination, the Government proposed to accept the findings of the enquiry officer holding that the charge Nos.1&3 proved and charge No.2 as partly proved and for the proven charges, the Government decided to impose punishment of stoppage of increment for a period of one year without cumulative effect and that the punishment will not affect her pension and the punishment will be exclusive of the leave period spent by her. Challenging the said order, the petitioner has filed this writ petition. 7. Heard Mr.L.Chandrakumar, learned counsel appearing for the petitioner and Mr.K.Ravichandran learned Additional Government Pleader appearing for the respondents. 8. The challenge to the impugned order is mainly on two grounds, firstly by contending that the work done by the petitioner as Co-ordinator-cum-Special Tahsildar (Land Acquisition), was to assist the Land Acquisition Officer and the nature of duties discharged by her are quasi judicial in nature and therefore, assuming that there is some error in such exercise of quasi judicial power, the same cannot be a ground to frame a charge under Rule 17(b). In support of such contention, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of Zunjarrao Bhikaji Nagarkar vs. Union of India & Ors., reported in (1999) 7 SCC 409 . 9. The second ground of challenge is by contending that the action initiated against the petitioner is discriminatory, since the Land Acquisition Officer, who is the competent authority to sign the notification has not been proceeded against and no charge memo was issued to the Land Acquisition Officer. The learned Additional Government Pleader by relying upon the counter affidavit would justify the punishment imposed and stated that this Court cannot substitute its views and interfere with the penalty. The petitioner having been appointed to assist the Land Acquisition Officer (District Revenue Officer) should have carefully scrutinised the files and the Government considering all the issues has only imposed minor penalty. Therefore, it is contended that the impugned order does not call for interference. 10. The sum and substance of the allegation against the petitioner is that she has failed to carefully scrutinise the files and present the same before the Land Acquisition Officer within the appropriate time, which has resulted in the publication of the notification beyond the statutory period resulting in lapsing of the notification, as a consequent of which fresh proceedings were to be initiated resulting in additional expenditure. 11. It is not in dispute that the petitioner is not the Land Acquisition Officer, but she was only appointed as Coordinator to assist the District Revenue Officer (Land Acquisition Officer). 11. It is not in dispute that the petitioner is not the Land Acquisition Officer, but she was only appointed as Coordinator to assist the District Revenue Officer (Land Acquisition Officer). The counter affidavit proceeds on the basis that the petitioner failed to carefully scrutinise the files submitted to the Land Acquisition Officer and if she had done so with due diligence, the delay in publication of the notification under Section 6 of the Act could have been easily avoided. 12. Curiously enough, the Land Acquisition Officer who is the competent authority to issue the declaration has not been proceeded against. There is no reason forthcoming in the counter affidavit as to why the Land Acquisition Officer has not been proceeded against inspite of the specific ground raised by the petitioner alleging discrimination. The petitioner in her explanation had stated that when the land acquisition proceedings were challenged before this Court in W.P.No.7553 of 2000, she had produced the draft counter affidavit for approval, which was approved and filed before Court and the Court examined the files and held that the land acquisition was done after following appropriate procedure and the writ petition was dismissed with costs. This aspect of the matter has not been dealt with by the enquiry officer while considering charge No.1. Infact in the findings given by the enquiry officer he has specifically stated and the Land Acquisition Officer also did not examine the late publication in the daily newspaper and has approved it. If such is the finding of the enquiry officer, the question which remains unanswered is as to why the Land Acquisition Officer (DRO) was not issued a charge, when the Land Acquisition Officer should have been a co-delinquent along with the petitioner. 13. Sofar as the Charge No.2, the enquiry officer holds that the petitioner is jointly responsible, but the charge memo was issued only to the petitioner and the charge does not say that the financial loss has to be recovered from the petitioner on proportionate basis and the allegation in the charge is only regarding the loss and the charge does not speak of any recovery muchless proportionate recovery. Therefore, the enquiry officer misdirected himself in considering scope of charge No.2. 14. Furthermore, there is no specific findings by the enquiry officer that the expenditure part is dealt with by the petitioner. Therefore, the enquiry officer misdirected himself in considering scope of charge No.2. 14. Furthermore, there is no specific findings by the enquiry officer that the expenditure part is dealt with by the petitioner. The enquiry officer did not examine the duties and responsibilities of the petitioner as a Co-ordinator, when she has specifically raised the point that she is not responsible for the alleged loss. Therefore, the findings rendered by the enquiry officer in respect of Charge No.2 is on a wrong understanding of the allegation in the charge memo, without adverting to the relevant facts and without considering the nature of duties and responsibilities of the petitioner. Therefore, the findings rendered by the enquiry officer in respect of charge No.2 is held to be not sustainable in law. If such is the conclusion arrived at by this Court in respect of charge Nos.1&2, it automatically follows that the charge No.3 is not proved. 15. The learned counsel appearing for the petitioner submitted that the nature of duties and responsibilities of the petitioner is quasi, therefore no charge could have been framed for alleged lapse in a quasi judicial function. To that end, no material was placed before this Court to show that the petitioner exercised quasi judicial powers. Probably in cases, where compensation is fixed for the land owners, it could be said that to some extent exercise of discretionary power, which is governed by the statute and guided by the judicial precedents. Even such power cannot be in the strict sense termed as a quasi judicial power. In the instant case, the petitioner was appointed as a Co-ordinator to the Land Acquisition Officer, therefore, I am unable to agree with the learned counsel counsel for the petitioner in contending that the petitioner was discharging quasi judicial functions. 16. The decision in the case of Zunjarrao Bhikaji Nagarkar (supra) was a case, where the appellant was a Collector of Central Excise and the allegation against him was, he favoured an assessee by not imposing penalty under Section 173-Q of the Central Excise Rules, 1944. The respondent in the case of Union of India & Ors., vs. Duli Chand reported in (2006) 5 SCC 680 , was also an Officer against whom allegation was made that he had negligently allowed refund claims on three occasions. The respondent in the case of Union of India & Ors., vs. Duli Chand reported in (2006) 5 SCC 680 , was also an Officer against whom allegation was made that he had negligently allowed refund claims on three occasions. Thus, these decisions cited by the learned counsel for the petitioner are distinguishable on facts and does not render any support to the petitioner's case. 17. As held supra, the findings of the enquiry officer in respect of charge Nos.1&2 are wholly unsustainable, there is no explanation as to why the Land Acquisition Officer has not been proceeded with. The contention raised by the petitioner in her explanation, where not adverted to. The enquiry officer did not examine any witness, no documents were marked, as a consequent of which the petitioner could not cross examine any person nor dispute the correctness of the allegations in the charge. Though in the annexure to the charge memo, eight documents were referred to in support of the charge, no document were marked during the course of enquiry. 18. Thus, not only the findings of the enquiry officer are untenable the entire enquiry proceedings is vitiated for not following the procedure required to be followed while conducting a domestic enquiry. This has undoubtedly resulted in serious violation of principles of natural justice. The Government while considering the findings of the enquiry officer did not advert to the further explanation submitted by the petitioner except for narrating the further explanation given by the petitioner. Mere narration of the findings will not amount to rendering a finding or considering the merits of the explanation. Thus, the order passed by the Government also suffers from total non-application of mind. 19. For all the above reasons, this Court is inclined to interfere with the order of punishment, though it is the case of the minor penalty on account of the gross procedural infirmities, violation of principles of natural justice apart from being discriminatory, as it is evident that the petitioner has been singled out and no action has been initiated against the competent authority who was directly responsible for the delay in publication of the said declaration under Section 6 of the Land Acquisition Act. 20. 20. In the result, the writ petition is allowed, the impugned order is quashed and the respondents are directed to consider the case of the petitioner for notional promotion in accordance with law as expeditiously as possible, preferably within a period of three weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.