1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.06.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD)No.6950 of 2011 and M.P.(MD)No.1 of 2011 G.G.Vaijeyanthi : Petitioner Vs. 1.Agricultural Production Commissioner and Secretary, Fort St. George, Chennai-600 009. 2.The Chief Engineer, Agricultural Engineering, 487, Anna Salai, Nandanam, Chennai-600 035. 3.The Superintending Engineer, Agricultural Engineering, 60, T.P.K.Road, Madurai-625 011. : Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the second respondent dated 20.05.2008 issued in his reference br.K.Miz vz;.x.K.e.3/80335/2007, dated 20.05.2008 and the impugned order of the first respondent issued in G.O.(D)98, Agriculture Bt.ep.6 Jiw, dated 11.06.2010 and quash the same and to direct the respondents to return the amount recovered towards the punishment of stoppage of increment for two years without cumulative effect and also to consider the petitioner's name for promotion from the date on which the petitioner's juniors were promoted. For Petitioner : Mr.K.Vellaiswamy For Respondents : Mr.B.Pugalendhi Special Government Pleader ORDER Mr.B.Pugalendhi, learned Special Government Pleader, takes notice on behalf of the respondents. By consent, the Writ Petition is taken up for final disposal at the stage of admission itself. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Heard the learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents. 3. Challenging the impugned order of the second respondent dated 20.05.2008 and also the consequential order of the first respondent dated 11.06.2010, the present Writ Petition is laid. 4. The case of the petitioner is that she has joined the service as a Steno-Typist in the department at Madurai on 07.04.1982. Now, she is working as Steno-Typist Grade-II in the office of the third respondent. In the year 2007, the impugned charge memo was issued by the third respondent, by proceeding dated 22.08.2007, under Rule 17(a) of the Civil Services and Appellate Rules. The petitioner submitted a detailed reply on 20.08.2007. However, the second respondent has passed the final order dated 20.05.2008 imposing the punishment of stoppage of increment for two years without cumulative effect, without taking into consideration the relevant points raised by the petitioner. The petitioner preferred an appeal before the first respondent. The first respondent also confirmed the order of the second respondent, by his order dated 11.06.2010. Those orders are under challenge in the present Writ Petition. 5. The learned counsel appearing for the petitioner mainly contended that neither the second respondent nor the first respondent has given any independent reasons to come to a conclusion that the petitioner is liable for the charges levelled against her. That apart, he has contended that without considering the several explanations offered by the petitioner, the second respondent has passed the impugned order dated 20.05.2008 and the first respondent merely confirmed the order without assigning any reason. Thus, according to the learned counsel appearing for the petitioner, the impugned orders are liable to be set aside. 6. However, the learned Special Government Pleader appearing for the respondents contended that the relevant facts were taken into consideration by the second and first respondents and hence, the second respondent has passed the impugned order dated 20.05.2008, imposing the punishment of stoppage of increment for two years without cumulative effect on the petitioner. The said order has been confirmed by the first respondent. 7. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents. 8. As rightly contended by the learned counsel appearing for the petitioner, neither the second respondent nor the first respondent has given any reasons to inflict the punishment on the petitioner. In order to appreciate the contention made by the learned counsel appearing for the petitioner in this regard, it would be useful to extract the operative portion of the order of the second respondent, which is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ 3 "jpUkjp $p.$p.itb$ae;jp, RUf;F jl;lr;rh; (juk;- 2) mth;fs; kPJ bjhptpf;fg;gl;Ls;s 5 FiwghLfSf;F md;dhuhy; mspf;fg;gl;l tpsf;fk; Mfpait ftdkhf ghprPypf;fg;gl;lJ. FiwghLfSf;F jpUkjp $p.$p.itb$ae;jp, RUf;F jl;lr;rh; (juk;- 2) mth;fs; mspj;Js;s tpsf;fk; Vw;g[ilajhf ny;iy. vdBt ntuJ Cjpa cah;tpid nuz;L tUlA;fSf;F jpuz;l gadpd;wp epWj;jk; bra;a (Stoppage of increment for two years without cumulative effect) njd; Kyk; Miz tHA;fg;gLfpwJ. nt;thiz chpa mYtyhpd; xj;jpirt[ (Concurrence) bgw;W tHA;fg;gLfpwJ." Thus, it could be seen that the said authority has not assigned any reason for inflicting the punishment on the petitioner. 9. Even the appellate authority has not assigned any reason whatsoever, while confirming the order of the second respondent. The first respondent has merely taken into consideration the opinion offered by the Tamil Nadu Public Service Commission. The operative portion at paragraph No.5 of the order made thereunder is usefully extracted hereunder: "5. jpUkjp $p.$p.itb$ae;jp, RUf;bfGj;J jl;lr;rh; juk; -2 mth;fspd; Bky;KiwaPl;od; kPjhd jkpH;ehL muRg; gzpahsh; Bjh;thizaj;jpd; fUj;J kw;Wk; bjhlh;g[ila MtzA;fSld; muR ftdkhfg; ghprPyid bra;J Bjh;thizaj;jpd; fUj;jpid Vw;W, jpUkjp $p.$p.itb$ae;jp, RUf;bfGj;J jl;lr;rh; juk;- 2 mth;fspd; Bky;KiwaPl;oid epuhfhpf;fyhk; vd Kot[ bra;J, mt;thBw muR MizapLfpwJ. BkYk; mtuJ Cjpa cah;tpid jpuz;l gadpd;wp nuz;L tUlA;fSf;F epWj;jk; bra;J tHA;fg;gl;l jz;lid mtuJ Xa;t{jpaj;ij ghjpf;fhJ vd;Wk;, mtuJ tpLg;g[f;fhyk; ePA;fyhdJ vd;Wk; muR MizapLfpwJ." 10. Thus, I am of the considered view that neither the second respondent nor the first respondent has given any reasons to come to the conclusion that the petitioner has to be blamed for the charges made against her and that the punishment has to be imposed on her. The authority, who is vested with power to impose punishment, cannot merely rely on the report, without considering the explanation offered by the petitioner on the report of the Enquiry Officer. The said view was taken by the Principal Bench in K.KANDASAMY Vs. DEPUTY INSPECTOR GENERAL OF POLICE, TIRUCHIRAPALLI RANGE, TIRUCHIRAPALLI AND ANOTHER reported in (2006) 4 MLJ – 1382 and paragraph Nos.7,8 and 9 of the order made thereunder are usefully extracted hereunder: "7. It is seen from the aforesaid portion of the impugned order that the Appellate Authority did not deal with any of the grounds of appeal raised by the petitioner. A departmental appeal is a continuation of the original proceedings. It is needless to point out that the last opportunity available for a delinquent, to canvass his case on merits, is at the appellate stage. After the appeal, a delinquent loses his right to challenge any disciplinary proceedings on merits, since the scope of interference on a revision or on a writ petition is very limited. Therefore, the rules themselves contemplate appellate authorities to go into the factual details and consider all the grounds of appeal before deciding an appeal. Unfortunately, the first respondent has chosen to https://hcservices.ecourts.gov.in/hcservices/ 4 dismiss the appeal by a non-speaking order and hence the appellate authorities order is liable to be set aside. 8. A similar question came up for consideration before this Court in Arokiadoss v. The Deputy Commissioner of Police, Law and Order (South), Madras-8 and Anr. 1989 W.L.R. 274. In the said case also, an identical order similar to the one involved in the present case was passed by the Appellate Authority. Therefore, after considering the scope of the powers conferred upon the Appellate Authority, this Court held as follows in paragraph-3: Rule 6(1) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 reads as follows: In the case of an appeal against an order imposing any penalty specified in Rule 2, the appellate authority shall consider-- (a) Whether the facts on which the order was based have been established; (b) Whether the facts established afford sufficient ground for taking action, and (c) Whether the penalty is excessive, adequate or inadequate, and after such consideration shall pass orders as it thanks proper. The rule enjoins the concerned authority to consider the three aspects set out therein specifically. Unless the appellate authority considers them it cannot be said that it has carried out its duties properly. The Supreme Court had occasion to discuss a similar question under Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Dealing with the word 'consider' used in the said rule, the Supreme Court observed that the word 'consider' implies due application of mind-vide R.P. Bhatt v. Union of India MANU/SC/0193/1982. The following paragraph in the above judgment of the Supreme Court can be usefully referred to with advantage-- https://hcservices.ecourts.gov.in/hcservices/ 5 The word 'consider' in Rule 27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) Whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) Whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc, the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in Clauses (a), (b) and (c)thereof. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with and if not, whether such non- compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were unwarranted by the evidence on record. It seems that he only applied his mind to the requirement of Clause (2) of Rule 27(2) viz., whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non- compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside. 9. Thus it is clear that the appellate authority's order is in violation of the rules relating to disposal of appeals and consequently, it is liable to be set aside. Therefore, the writ petition is allowed. The order passed by the first respondent dated 29.9.1995 is set aside and the matter remitted back to the first respondent for a fresh disposal on merits in accordance with law and the said exercise shall be completed by the first respondent within a period of four months from the date of receipt or production of a copy of this order. No costs." 11. In view of the above stated position, I am inclined to set aside the impugned order of the second respondent dated https://hcservices.ecourts.gov.in/hcservices/ 6 20.05.2008 and also the order of the first respondent dated 11.06.2010 and accordingly, set aside and the Writ Petition, therefore, stands allowed. Needless to say that the second respondent is at liberty to pass orders afresh, after notice to the petitioner, giving reasons thereof. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To 1.The Agricultural Production Commissioner and Secretary, Fort St. George, Chennai-600 009. 2.The Chief Engineer, Agricultural Engineering, 487, Anna Salai, Nandanam, Chennai-600 035. 3.The Superintending Engineer, Agricultural Engineering, 60, T.P.K.Road, Madurai-625 011. +1cc to Mr.K.Vellaiswamy, Advocate, Sr.No.21016 +1cc to the Special Govt.Pleader, Sr.No. 21189 sml ssk/25.07.2011 /6c -6p/- Order made in W.P.(MD)No.6950 of 2011 Dated:- 30.06.2011 https://hcservices.ecourts.gov.in/hcservices/