IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.10.2009 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NOS.5698 & 6967 OF 2007 K.V.Lakshmi Rajyam .. Petitioner in both WPs' Versus 1.The Commissioner of Treasuries & Accounts Chennai – 15. 2.The District Treasury Officer Cuddalore District, Cuddalore. .. Respondents in both WPs' PRAYER IN W.P.NO.5698 / 2007 : This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.1144 of 2002 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records on the file of the 2nd respondent in connection with the order of punishment passed by him in his Proc.Na.Ka.No.7101/98/E3 dated 21.2.2001/5.3.2001 and quash the same. PRAYER IN W.P.NO.6967 / 2007 : This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.1427 of 2002 from the file of Tamil Nadu Administrative Tribunal with a prayer to direct the respondents to promote the petitioner to the post of Sub Treasury Officer / Superintendent subject to the quashing of the punishment awarded by the 2nd respondent in his Proc.Na.Ka.No.7101/98/E3 dated 21.2.2001 served on 5.3.2001 with effect from the date of promotion given to her juniors with all monetary and service benefits. For Petitioner : Mr.R.Singgaravelan For Respondents: Mr.P.Muthukumar Government Advocate COMMON ORDER The Original Applications in O.A.Nos.1144 and 1427 of 2002 before the Tamil Nadu Administrative Tribunal are the present writ petitions. 2.Both the writ petitions are heard together and a common order is passed as the issue involved in both the writ petitions are inter-connected. https://hcservices.ecourts.gov.in/hcservices/ 3.The petitioner joined the service as Junior Assistant on 15.01.1974. She was promoted as Accountant on 25.02.1980. While so, a charge memo dated 18.11.1998 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (in short "the Rules") was issued, levelling three charges against her. She submitted her explanation on 14.10.1999 denying the charges. Not satisfied with her explanation an Enquiry Officer was appointed. The Enquiry Officer conducted an enquiry and submitted his report on 19.04.2000. The Enquiry Officer, in his report dated 19.04.2000, has held that two charges were not proved and that the third charge was not fully proved. The third charge was that she approved bills only after the fixed period of three days, when she was in service in the Sub Treasury Office at Panruti. The Enquiry Officer held that the petitioner could not be blamed for approving the bills beyond three days, since the bills were delayed in other places. 4.The Disciplinary Authority, instead of taking a decision on his own, addressed the first respondent in his letter dated 23.05.2000, enclosing the copy of the report of the Enquiry Officer and sought the views of the first respondent thereon. The first respondent sent a reply dated 17.06.2000 directing the second respondent to verify the bills to find out whether there was a delay on the table of the petitioner and to come to his own conclusion as to whether the third charge was fully proved or not. Thereafter, the second respondent verified the bills behind the back of the petitioner. In this process, he came to the conclusion that so many bills were sent beyond three days from the table of the petitioner. Thereupon, the second respondent, came to the conclusion that the third charge was fully proved. That is, the second respondent recorded a differed findings from that of the Enquiry Officer. Based on such a differed findings, the second respondent imposed the minor punishment of stoppage of increment for six months without cumulative effect by an order dated 21.02.2001. 5.Though the petitioner was included in the panel dated 26.10.1998 of Accountants fit for promotion to the post of Sub Treasury Officers, issued by the first respondent, she was not promoted as Sub Treasury Officer / Superintendent, when her juniors were promoted, in view of the pendency of the disciplinary proceedings under Rule 17(b) of the Rules. 6.The petitioner filed Original Application in O.A.No.1144 / 2002 (W.P.No.5698/2007) to quash the order dated 21.02.2001 of the second respondent, imposing the minor punishment of stoppage of increment for six months without cumulative effect. 7.The petitioner filed another Original Application in O.A.No.1427/2002 (W.P.No.6967/2007) for a direction to the respondents to promote her to the post of Sub Treasury Officer/Superintendent without reference to the punishment order https://hcservices.ecourts.gov.in/hcservices/ dated 21.02.2001 with effect from the date on which her immediate junior was promoted with all monetary benefits. 8.Heard Mr.R.Singgaravelan, learned counsel for the petitioner and Mr.P.Muthukumar, learned Government Advocate for the respondents. 9.The learned counsel for the petitioner submits that the second respondent abdicated his power as the Disciplinary Authority. It is submitted that the second respondent, being the Disciplinary Authority, ought to have arrived at independent conclusions and the second respondent is not a subordinate authority to the first respondent, while acting as Disciplinary Authority. Therefore, the second respondent committed grave error in seeking advice of the first respondent as to how he should proceed about with the disciplinary matter on receipt of the findings of the Enquiry Officer. 10.It is further submitted by the learned counsel for the petitioner that the action of the second respondent in verifying the bills behind the back of the petitioner was arbitrary, illegal and in violation of principles of natural justice. The learned counsel for the petitioner also submits that before the second respondent arrived at different findings from that of the findings of the Enquiry Officer, the second respondent should have furnished his tentative findings and sought explanation from the petitioner thereon, in conformity with the principles of natural justice. But, the same was not followed by the second respondent. It is submitted that therefore, the impugned punishment order is vitiated. 11.As far as promotion to the post of Sub Treasury Officer/Superintendent is concerned, it is submitted that if W.P.No.5698/2007 is allowed, the petitioner is entitled to promotion to the post of Sub Treasury Officer/Superintendent. She is thus entitled to succeed in W.P.No.6967/2007 as well. 12.On the other hand, the learned Government Advocate contends based on the reply affidavit of the respondents that there was nothing wrong in the communication of the second respondent to the first respondent, seeking guidance in the disciplinary matter. It is submitted that the second respondent could not be found fault for recording a finding that the third charge was proved. Since the charges under Rule 17(b) of the Rules were pending, the petitioner was not given promotion while her juniors were promoted. 13.I have considered the submissions made on either side. I am of the considered view that the second respondent, being a disciplinary authority, should have acted independently and should not have sought the advice of the first respondent as to what he should do when the Enquiry Officer found the third charge was not https://hcservices.ecourts.gov.in/hcservices/ fully proved. The learned counsel for the petitioner is correct in his submission that the second respondent abdicated his function as the Disciplinary Authority. 14.This Court in the order dated 15.06.1993 in W.P.Nos. 3482 of 1990 etc. batch, held that when an authority is clothed with certain powers, which are in the nature of quasi judicial, the higher authorities cannot interfere in the exercise of such powers by the concerned authority. The following passage in para 4(v) of the judgment is extracted here-under: "........ The Board has no jurisdiction to issue such a clarification and it is for the Competent Authority to decide independently on the facts and circumstances of each case with regard to the claim for contribution." 15.The learned counsel for the petitioner also relies on a judgment in SANJEEV KUMAR AND OTHERS ETC., VS. STATE OF U.P. AND ANOTHER reported in 2000 (1) SLR 501 in this regard. Para 21 of the said judgment is extracted here-under: "21.There is no denying the fact that relationship of a master and servant is between the Government and the employees irrespective of which is the Appointing Authority and in that view of the matter, the Government may lay down norms and guidelines for guidance of the Appointing Authority and violation of such norms and guidelines may, in appropriate cases, call for an action against the officer concerned but the statutory power conferred upon the Appointing Authority cannot be usurped by superior officer. The orders impugned herein having been passed on the dictates of the superior officer are liable to be quashed." 16.The learned counsel for the petitioner has also relied on a decision of the Central Administrative Tribunal, Bombay in T.V.S. SARMA VS. UNION OF INDIA AND ANOTHER reported in 1995 (1) CAT 365 and the relevant para in the judgment is extracted here-under. "15.We are, therefore, of the view that the penalty of discharge imposed on the applicant is vitiated as being a penalty not provided in the rules and also being a penalty which was imposed on the applicant under dictation from a higher authority, although the disciplinary authority itself was inclined to impose a penalty of Censure". 17.Applying the principles enunciated in the judgment referred to above, the action of the second respondent in seeking the https://hcservices.ecourts.gov.in/hcservices/ advice of the first respondent on the disciplinary matter is bad and illegal. 18.Further, as rightly contended by the learned counsel for the petitioner, the second respondent ought to have furnished his differed findings to the petitioner and her views thereon should have been obtained before coming to the final conclusion on the findings of the second respondent. It has been held by a Division Bench of this Court in V. ARULKUMAR VS. HOUSING AND URBAN DEVELOPMENT CORPORATION LTD. (HUDCO) reported in 2009 (3) CTC 388 that if the delinquent employee was not heard on the differed findings of the Disciplinary Authority, the punishment imposed on the delinquent employee based on such a finding is vitiated. In this case, the petitioner has already retired from service. Hence, there is no purpose in sending back the matter to the second respondent to decide afresh after hearing the petitioner, particularly when the punishment was of a minor nature. 19.Hence, the writ petition in W.P.No.5698 of 2007 is allowed and the impugned order dated 21.02.2001 of the second respondent, imposing the minor punishment of stoppage of increment for six months without cumulative effect is quashed. 20.Even if the punishment is not quashed, the respondents were not justified in not promoting the petitioner, since the punishment imposed was of minor in nature. In this regard, the learned counsel for the petitioner relies on the order dated 09.01.2009 of this Court in W.P.No.23751 of 2008, which in turn relies on the decision of a Division Bench of this Court in SUBRAMANIAN VS. GOVERNMENT OF TAMIL NADU, REP. BY ITS SECRETARY, CHENNAI AND OTHERS reported in 2008 (5) MLJ 350 and held that the Government employees could not be denied promotions on the ground of imposition of minor punishments. The relevant passage from the said judgment is extracted here-under: "11.The learned counsel for the petitioner would further submit that consequential prayer made in the writ petition for a direction to include the name of the petitioner in the panel for promotion may be granted. He would submit that as per the law laid down by a Division Bench of this Court in Subramanian V. Government of Tamil Nadu, rep. by its Secretary, Chennai and Others (2008 (5) MLJ 350), when the employee is imposed upon a punishment of stoppage of increment for two years without cumulative effect which could be construed only as a minor punishment, he could not be denied further promotion solely based on the same, if he is otherwise fit for promotion. The law laid down by the Division Bench is squarely applicable to the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the petitioner is entitled for his name to be included in the panel for promotion to the post of Deputy Inspector General of Registration provided he possess the other qualifications and if he satisfies the other legal requirements". 21.I am of the considered view that the matter is squarely covered by the decision of a Division Bench of this Court in SUBRAMANIAN VS. GOVERNMENT OF TAMIL NADU, REP. BY ITS SECRETARY, CHENNAI AND OTHERS reported in 2008 (5) MLJ 350 relied on by the learned Single Judge in W.P.No.23751 of 2008. Therefore, the petitioner is entitled to notional promotion from the date on which her immediate junior was promoted and the petitioner is entitled to notional fixation of pay and consequent revision of pension and other retirement benefits based on such a notional fixation. 22.In the result, the writ petition in W.P.No.6967 of 2007 is disposed of with a direction to the respondents to promote the petitioner notionally and fix her pay notionally and to pay the terminal benefits accordingly, within a period of eight weeks from the date of receipt of a copy of this order. No costs. TK Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Commissioner of Treasuries & Accounts Chennai – 15. 2.The District Treasury Officer Cuddalore District, Cuddalore. 3 cc To The Government Pleader, SR.54991, 54989,52041. 1 cc To Mr.R.Singaravelan, Advocate, SR.54328. W.P.NOS.5698 & 6967 OF 2007 ckn(co) ar/5.11.2009. https://hcservices.ecourts.gov.in/hcservices/