IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.03.2010 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.No.4895 of 2010 and M.P.No.1 of 2010 R.J.Ambirajan ... Petitioner Versus 1.The State of Tamil Nadu Rep.by the Secretary to Government Revenue Department, Secretariat, Chennai – 9. 2.The Regional Deputy Director of Survey and Land Records Chepauk, Chennai – 5. 3.The Assistant Director of Survey and Land Records Chennai – 1. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorarified mandamus, calling for the relevant records pertaining to the orders passed by the Assistant Director of Survey and Land Records, Chennai, the 3rd respondent herein vide his proceedings No.Rc.A9/1446/2005 dated 07.11.2007 confirmed by the Regional Deputy Director of Survey and Land Records, Chepauk, Chennai, the 2nd respondent herein vide his proceedings No.Na.Ka.A3.9258/08 dated 20.01.2009 and quash the same as illegal, arbitrary, unreasonable, being violative of rules and principles of natural justice and thereby direct the respondents herein to reinstate the petitioner into service with all consequential monetary and service benefits. For Petitioner : Mr.A.R.Suresh For Respondents : Mr.P.Subramaniam Additional Government Pleader O R D E R Heard both sides. https://hcservices.ecourts.gov.in/hcservices/ 2.The writ petition is filed by the petitioner seeking to challenge the order of the second respondent dated 20.01.2009 confirming the order of the third respondent dated 07.11.2007. 3.It is seen from the order of the third respondent that the petitioner, who was working as a Sub Inspector of Survey, was convicted on a criminal charge under Section 7, 13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988. The VII Additional Sessions Judge, Chennai, by his judgment dated 05.10.2007 in C.C.No.4/2005, awarded the sentence of 3 years rigorous imprisonment (RI) with fine of Rs.5,000/- and in default of the payment of fine, a further imprisonment of 3 months RI imposed on him. For the demand and acceptance of bribe, he was further convicted with 4 years RI with fine of Rs.10,000/- and in default to undergo 6 months RI. Both the sentences were directed to be run concurrently. The petitioner paid the fine amounts as ordered by the VII Additional Sessions Judge, Chennai. 4.The petitioner filed an appeal in Crl.A.No.931/2007 before this Court. This Court, having noted that the petitioner has paid the fine amounts, vide order dated 02.11.2007 suspended the sentences. It is now stated that the appeal is still pending. 5.In the meanwhile, the petitioner was given a show cause notice dated 16.10.2007 purporting to be under Rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. In the show cause notice, it was informed that the respondents are proposing to impose the penalty in terms of Rule 8 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules on the conduct that led to his conviction in the Criminal Court. Therefore, an opportunity was given to the petitioner to give his reply on the penalty proposed. The petitioner sent his reply dated 29.10.2007 stating that since the matter is pending in Crl.A.No.931 of 2007 it is sub-judice and therefore, he was unable to give a reply. On receipt of the letter sent by the petitioner, the third respondent passed an order dated 07.11.2007 and dismissed the petitioner from service with immediate effect. At the time of passing the dismissal order, the third respondent was one R.S.Mani, who was the Assistant Director of Survey and Land Records, Chennai. 6.The petitioner preferred a statutory appeal dated 08.12.2008 to the second respondent, who is the Regional Deputy Director of Survey and Land Records. In the appeal, the petitioner once again stated that by an order dated 02.11.2007 in C.M.P.No.1/2007 in Crl.A.No.931/2007, the sentence imposed stood suspended by this Court. Therefore, no adverse order should be passed against him and that the order passed by the third respondent was illegal. He also stated that in the trial before the Criminal Court relevant records were not produced and that was why he was convicted. https://hcservices.ecourts.gov.in/hcservices/ 7.It is unnecessary to go into the merits of his conviction. Suffice it to state that the statutory appeal has been dealt with by the second respondent and it was dismissed by an order dated 20.01.2009. It was stated that the suspension of sentence will not erase the conviction on record and therefore, his appeal cannot be entertained. However, it must be noted that the second respondent was the same R.S.Mani, who passed the order as third respondent. By the time the appeal came up for hearing, the said R.S.Mani came to hold the second respondent post. As an appellate authority, he had signed the order. The petitioner has come forward to challenge both the orders on three grounds. 8.The first ground was that the appellate authority is the same person as that of the Disciplinary Authority, namely R.S.Mani and therefore, the appellate order suffers from bias. The second contention raised was that since the Criminal Appeal is pending before this Court and the sentence was suspended, no action can be taken by the respondents and it is only on a final conviction, any order can be passed by the authorities. The third contention was that while issuing show cause notice under Rule 17(c), the authority cannot prejudge the issue and a reasonable opportunity must be given as to which of the major penalty under Rule 8 will be imposed on him. 9.In the present case, the show cause notice was silent on the nature of penalty in question. In support of his contention, a judgment of this Court in M.DEVENDRAN VS. THE DIRECTOR, TAMIL NADU FIRE AND RESCUE SERVICES, EGMORE, TAMIL NADU reported in 2006 (1) MLJ 40 is relied upon. 10.Taking the second contention first, it must be stated that the issue raised is no longer res integra. In the judgment of the Supreme Court in DEPUTY DIRECTOR OF COLLEGIATE EDUCATION (ADMINISTRATION), MADRAS VS. S.NAGOOR MEERA reported in 1995 (3) SCC 377, it was held that suspension of sentence will not erase the conviction and there is no impediment for the Disciplinary Authority to impose the penalty on the basis of the conviction ordered by the Trial Court. In this context, it is necessary to refer to the following passage found in paras 8, 9 and 10, which read as follows: "8. We need not, however, concern ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the “conduct which has led to his conviction on a criminal charge” and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction https://hcservices.ecourts.gov.in/hcservices/ in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal. 9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this Court in Shankar Dass v. Union of India: (SCC p. 362, para 7) “Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service ‘on the ground of conduct which has led to his conviction on a criminal charge’. But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a government https://hcservices.ecourts.gov.in/hcservices/ servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly.” 10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice." (Emphasis added) Therefore, the second contention has no substance. 11.The third contention is that the notice under Rule 17(c) is invalid. It is necessary to refer to the constitutional Bench judgment of the Supreme Court in UNION OF INDIA VS. TULSIRAM PATEL reported in 1985 (3) SCC 398. In that case, the Supreme Court while dealing with the Railway Servants (Discipline and Appeal) Rules as well as Central Industrial Security Force Rules regarding taking disciplinary action on the basis of conviction dealt with the scope of those rules framed under Article 309 vis-a-vis the constitutional mandate of Article 311(2) of the Constitution. The Court was faced with the earlier judgment of the Supreme Court in DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY VS. T.R.CHALLAPPAN, reported in 1976 (3) SCC 190. After referring to Challappan case (cited supra), in para Nos.114, 115, 122 and 123, it was held as follows: "114. So far as Challappan case is concerned, it is not possible to find any fault either with the view that neither clause (a) of the second proviso to Article 311(2) nor clause (i) of Rule 14 of the Railway Servants Rules is mandatory or with the considerations which have been set out in the judgment as being the considerations to be taken into account by the disciplinary authority before imposing a penalty upon a delinquent government servant. Where a situation envisaged in one of the three clauses of the second proviso to Article 311(2) or of an analogous service rule arises, it is not mandatory that the major penalty of dismissal, removal or reduction in rank should be imposed upon the concerned government servant. The penalty which can be imposed may be some other major penalty or even a minor penalty depending upon the facts and circumstances of the case. In order to arrive at a decision as to which penalty should be https://hcservices.ecourts.gov.in/hcservices/ imposed, the disciplinary authority will have to take into consideration the various factors set out in Challappan case. It is, however, not possible to agree with the approach adopted in Challappan case in considering Rule 14 of the Railway Servants Rules in isolation and apart from the second proviso to Article 311(2), nor with the interpretation placed by it upon the word “consider” in the last part of Rule 14. Neither Rule 14 of the Railway Servants Rules nor a similar rule in other service rules can be looked at apart from the second proviso to Article 311(2). The authority of a particular officer to act as a disciplinary authority and to impose a penalty upon a government servant is derived from rules made under the proviso to Article 309 or under an Act referable to that article. As pointed out earlier, these rules cannot impinge upon the pleasure of the President or the Governor of a State, as the case may be, because they are subject to Article 310(1). Equally, they cannot restrict the safeguards provided by clauses (1) and (2) of Article 311 as such a restriction would be in violation of the provisions of those clauses. In the same way, they cannot restrict the exclusionary impact of the second proviso to Article 311(2) because that would be to impose a restriction upon the exercise of pleasure under Article 310(1) which has become free of the restrictions placed upon it by clause (2) of Article 311 by reason of the operation of the second proviso to that clause. The only cases in which a government servant can be dismissed, removed or reduced in rank by way of punishment without holding an inquiry contemplated by clause (2) of Article 311 are the three cases mentioned in the second proviso to that clause. A rule which provides for any other case in which any of these three penalties can be imposed would be unconstitutional. Service rules may reproduce the provisions of the second proviso authorizing the disciplinary authority to dispense with the inquiry contemplated by clause (2) of Article 311 in the three cases mentioned in the second proviso to that clause or any one or more of them. Such a rule, however, cannot be valid and constitutional without reference to the second proviso to Article 311 (2) and cannot be read apart from it. Thus, while the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules, the source of his power to dispense with the inquiry is derived from the second proviso to Article 311(2) and not from any service rules. There is a https://hcservices.ecourts.gov.in/hcservices/ well-established distinction between the source of authority to exercise a power and the source of such power. The Court in Challappan case was, therefore, in error in interpreting Rule 14 of the Railway Servants Rules by itself and not in conjunction with the second proviso (at that time the only proviso) to Article 311 (2). It appears that in Challappan case the Court felt that the addition of the words “the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit” warranted an interpretation of Rule 14 different from that to be placed upon the second proviso. This is also not correct. It is true that the second proviso does not contain these words but from this it does not follow that when acting under the second proviso, the disciplinary authority should not consider the facts and circumstances of the case or make an order not warranted by them. It is also not possible to accept the interpretation placed upon the word “consider” in Challappan case. According to the view taken in that case, a consideration of the circumstances of the case cannot be unilateral but must be after hearing the delinquent government servant. If such were the correct meaning of the word “consider”, it would render this part of Rule 14 unconstitutional as restricting the full exclusionary operation of the second proviso. The word “consider”, however, does not bear the meaning placed upon it in Challappan case. The word “consider” is used in Rule 14 as a transitive verb. The meaning of the word “consider” as so used is given in the Oxford English Dictionary as “To contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. The relevant definition of the word “consider” given in Webster’s Third New International Dictionary is “to reflect on: think about with a degree of care or caution”. Below this definition are given the synonyms of the word “consider” these synonyms being “contemplate, study, weigh, revolve, excogitate”. While explaining the exact different shades of meaning in this group of words, Webster’s Dictionary proceeds to state as under with respect to the word ‘consider’: “ ‘Consider’ often indicates little more than think about. It may occasionally suggest somewhat more conscious direction of thought, somewhat greater depth and scope, and somewhat greater purposefulness.” https://hcservices.ecourts.gov.in/hcservices/ It is thus obvious that the word “consider” in its ordinary and natural sense is not capable of the meaning assigned to it in Challappan case. The consideration under Rule 14 of what penalty should be imposed upon a delinquent railway servant must, therefore, be ex parte and where the disciplinary authority comes to the conclusion that the penalty which the facts and circumstances of the case warrant is either of dismissal or removal or reduction in rank, no opportunity of showing cause against such penalty proposed to be imposed upon him can be afforded to the delinquent government servant. Undoubtedly, the disciplinary authority must have regard to all the facts and circumstances of the case as set out in Challappan case. As pointed out earlier, considerations of fair play and justice requiring a hearing to be given to a government servant with respect to the penalty proposed to be imposed upon him do not enter into the picture when the second proviso to Article 311(2) comes into play and the same would be the position in the case of a service rule reproducing the second proviso in whole or in part and whether the language used is identical with that used in the second proviso or not. There are a number of orders which are of necessity passed without hearing the party who may be affected by them. For instance, courts of law can and often do pass ex parte ad interim orders on the application of a plaintiff, petitioner or appellant without issuing any notice to the other side or hearing him. Can it, therefore, be contended that the judge or judges, as the case may be, did not apply his or their mind while passing such an order? 115. The decision in Challappan case is, therefore, not correct with respect to the interpretation placed by it upon Rule 14 of the Railway Servants Rules and particularly upon the word “consider” occurring in the last part of that rule and in interpreting Rule 14 by itself and not in conjunction with the second proviso to Article 311(2). Before parting with Challappan case, we may, also point out that that case never held the field. The judgment in that case was delivered on September 15, 1975, and it was reported in (1976) 1 SCR at pages 783 . Hardly was that case reported then in the next group of appeals in which the same question was raised, namely, the three civil appeals mentioned earlier, an https://hcservices.ecourts.gov.in/hcservices/ order of reference to a larger Bench was made on November 18, 1976. The correctness of Challappan case was, therefore, doubted from the very beginning. 122. It will be noticed that Rule 37, except the last paragraph thereof, is in pari materia with Rule 14 of the Railway Servants Rules and Rule 19 of the Civil Services Rules with this difference that a provision akin to clause (iii) of Rule 14 of the Railway Servants Rules and clause (iii) of Rule 19 of the Civil Services Rules is not to be found in Rule 37 of the CISF Rules. The same interpretation as placed by us on the word “consider” occurring in Rule 14 of the Railway Servants Rules and Rule 19 of the Civil Services Rules must, therefore, be placed upon the word “consider” in Rule 37 of the CISF Rules. The last paragraph of Rule 37 of the CISF Rules is peculiar to itself and does not find a place either in the said Rule 14 or the said Rule 19. It is clumsily worded and makes little sense. To provide that a member of the CIS Force who has been convicted to rigorous imprisonment on a criminal charge “shall be dismissed from service” and at the same time to provide that “only a notice shall be given to the party charged proposing the punishment of dismissal for his having been convicted to rigorous imprisonment and asking him to explain as to why the proposed punishment of dismissal should not be imposed”, is a contradiction in terms If either of these provisions were taken as mandatory, it would be void as violating the second proviso to Article 311(2) because the penalty contemplated by the second proviso to Article 311(2) is not the penalty of dismissal only but also of removal or reduction in rank, and to make it mandatory to issue a notice to show cause against the proposed penalty of dismissal would equally violate the second proviso because it would whittle down the exclusionary effect of the second proviso. Therefore, both these provisions in the last paragraph of Rule 37 must be read as directory and not mandatory, not only to make sense out of them but also to preserve their constitutionality. So read, a breach of these provisions would not afford any cause of action to a member of the CIS Force. 123. A conspectus of the above service rules and the CISF Act shows that a government servant who has been dismissed, removed or reduced in rank without holding an inquiry because his case falls under one of the three clauses of the second proviso to Article 311 https://hcservices.ecourts.gov.in/hcservices/ (2) or a provision of the service rules analogous thereto is not wholly without a remedy. He has a remedy by way of an appeal, revision or in some cases also by way of review. Sub-clause (ii) of clause (c) of the first proviso of Rule 25(1) of the Railway Servants Rules expressly provides that in the case of a major penalty where an inquiry has not been held, the revising authority shall itself hold such inquiry or direct such inquiry to be held. This is, however, made subject to the provisions of Rule 14 of the Railway Servants Rules. The other service rules referred to above do not appear to have a similar provision nor does the Railway Servants Rules make the same provision in the case of an appeal. Having regard, however, to the factors to be taken into consideration by the Appellate Authority which are set out in the service rules referred to above a provision similar to that contained in sub-clause (c) of clause (ii) of the first proviso to Rule 25(1) of the Railway Servants Rules should be read and imported into provisions relating to appeals in the Railway Servants Rules and in the other service rules and also in the provisions relating to revision in the other service rules. This would, of course, be subject to the second proviso to Article 311(2), Rule 14 of the Railway Servants Rules, Rule 19 of the Civil Services Rules and Rule 37 of the CISF Rules. Thus, such a right to an inquiry cannot be availed of where clause (a) to the second proviso of Article 311(2) or a similar provision in any service rule applies in order to enable a government servant to contend that he was wrongly convicted by the criminal court. He can, however, contend that in the facts and circumstances of the case, the penalty imposed upon him is too