1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/04/2011 C O R A M THE HONOURABLE Mr.JUSTICE K.VENKATARAMAN Writ Petition (MD) No.2689 of 2011 S.Krishnan Nair ... Petitioner Vs The Secretary to Government Revenue Department Chief Secretariat, Chennai. ... Respondent Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to all for the records of the respondent relating to G.O.(2-D) No.645 Revenue (Ser)-2(2) Department dated 25.11.2010 and quash the same and consequently direct the Government to include the name of the petitioner in the approved list of Deputy Tahsildars of the year 2007 within a specified time fram that may be fixed by this Court. For petitioner ...Mr.S.Visvalingam For Respondent ...Mr.V.Rajasekaran Spl. Govt. Pleader O R D E R The petitioner has come up with the present Writ Petition challenging the impugned order of the respondent viz., G.O (2-D) No.645 Revenue (Ser)-2(2) Department dated 25.11.2010 and consequently direct the Government to include his name in the approved list of Deputy Tahsildar of the year 2007 within a time fixed by this Court. 2. The case of the petitioner in nutshell is stated hereunder: He joined as Junior Assistant on 02.06.1983 in the Taluk Office, Radhapuram composite Tirunelveli District. In 1993, he was promoted as Assistant and still, he is working in the cadre of Assistant. He is presently serving in the Taluk office, Srivaikundam. The present Commissioner and Commissioner of Revenue Administration, Chennai, framed charges against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, dated 21.11.2005. The charge against him in nutshell is that he is responsible for the enhancement of compensation for the land acquired by the Special Tahsildar (Adi-Dravidar Welfare). In fact, the District Collector, Tuticorin, has sent a report to the Principal Secretary and Commissioner of Revenue Administration, Chennai, that there was no loss of revenue to the Government in the said land acquisition proceeding. 2.1. While so, the Government has passed the impugned order dated https://hcservices.ecourts.gov.in/hcservices/ 2 25.11.2010 imposing a punishment, namely, stoppage of increment for a period of two years without cumulative effect. The said order is under challenge in the present Writ Petition. 3. Mr.S.Visvalingam, counsel appearing for the petitioner, by drawing my attention to the impugned order of the respondent pointed out that the impugned order does not reveal any reason for imposing a punishment on the petitioner. He has further submitted that except extracting the charges made against the petitioner, the explanation submitted by the petitioner and the finding of the Enquiry Officer, no independent reasons have been given by the respondent for imposing punishment on the petitioner. 4. The learned Special Government Pleader appearing for the respondent, however, submitted that the respondent has considered the charges made against the petitioner coupled with the explanation offered by the petitioner, considered the report of the Enquiry Officer and thereafter only the impugned order of punishment has been passed against the petitioner. 5. I have carefully considered the submissions made by the learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents. 6. As rightly pointed out by the learned counsel appearing for the petitioner that the impugned order passed by the respondent does not show any independent reason for coming to the conclusion that the charges framed against the petitioner was proved. Except saying that the charges, the explanation and the report of the Enquiry Officer has been considered, there is nothing to show that the respondent has independently considered the charges, the explanation and the enquiry report. Absolutely no reason has been given in the impugned order, why the punishment has been imposed on the petitioner. While imposing punishment, the authority concerned is expected to give reasons for imposing punishment. However, as stated already the respondent has not given any reason for imposing the punishment. 7. In such circumstances, this Court held in the judgment reported in K.Kandasamy v. Deputy I.G. of Police reported in 2006(4) MLJ 1382, the Principal Court has held that that such imposition of punishment is not tenable. 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 https://hcservices.ecourts.gov.in/hcservices/ 3 has chosen to dismiss the appeal by a non-speaking order and hence the Appellate Authority's order is liable to be set aside. 8. A similar question came up for consideration before this Court in Arokiadoss v. Deputy Commissioner of Police, Law and Order (South), Madras-8 and Another 1989 WLR 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: "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 thinks 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 – R.P.Bhatt v. Union of India AIR 1986 SC 1040. The following paragraph in the above judgment of the Supreme Court can be usefully referred to with advantage: "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, https://hcservices.ecourts.gov.in/hcservices/ 4 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 is 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." 8. In view of the above stated position, I am inclined to set aside the impugned order of the respondent, dated 25.11.2010, for the reasons stated above. The Writ Petition stands allowed. However, it is needless to say that the respondent is at liberty to pass orders afresh, after giving reasons thereof. No costs. SD/- Deputy Registrar (Accounts) /True Copy/ Assistant Registrar To The Secretary to Government Revenue Department Chief Secretariat, Chennai 9 +1 CC TO THE SPECIAL GOVERNMENT PLEADER S.R NO. 15505 W.P.(MD) No.2689 of 2011 26.04.2011 RR PAM 25.05.2011/3C/4P https://hcservices.ecourts.gov.in/hcservices/