IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.12.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.45175 of 2006(T) (O.A.NO.7108 of 2000) G.Swamidas .. Petitioner Vs. The Revenue Divisional Officer, Aruppukkottai, Virudhunagar District. .. Respondent O.A.No.7108 of 2000 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.45175 of 2006 filed under Article 226 of the constitution of India to praying for the issue of a writ of certiorarified mandamus to call for the records and to quash the impugned order of dismissal from service passed by the respondent herein in his proceedings Na.Ka.A1.881/98 dated 18.5.2000 and to direct the respondent to reinstate the applicant into service with all consequential, service and monetary benefits. For Petitioner : Mr.G.Bala for M/s.G.Bala & Daisy For Respondent : Mr.R.Murali, GA ORDER The petitioner who was working as a Village Administrative Officer in Ambaneri village, filed O.A.No.7108 of 2000, challenging an order dated 18.5.2000 passed by the respondent Revenue Divisional Officer, Aruppukkottai. By the said order, the petitioner was dismissed from service. Though the petitioner was informed that he can file a statutory appeal against the said order, the petitioner after getting appellate remedy waived, moved the Tribunal with the OA. The Tribunal granted an interim stay on 20.10.2000. The said interim order came to be continued until further orders by a further order, dated 3.11.2000. On notice from the Tribunal, the respondent has filed a reply affidavit, dated 2.1.2001. 2.In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.45175 of 2006. 3.The facts leading to termination of the petitioner are as follows: https://hcservices.ecourts.gov.in/hcservices/ The petitioner was appointed as Village Administrative Officer. While he was the VAO of Santhaiyur village, Sattur Taluk, a criminal case in Crime No.143 of 1988 was registered against him by Appaianaickenpatti police station. The charge against the petitioner was that he was involved in tree cutting case. With the connivance of two others, he cut the tamarind tree standing in S.No.148/1 in Pattai poramboke of Santhaiyur village. Since cutting of tree was not reported as per the rule, on report of the Tahsildar, Sattur, charges were framed by the respondents. Subsequently, penalty was imposed on the petitioner with stoppage of increment for five years with cumulative effect on 8.2.1988. In the meanwhile, a criminal case against the petitioner was proceeded before the Judicial Magistrate, Sattur. The trial court imposed six months imprisonment in C.C.No.43/1994. The petitioner preferred an appeal in Criminal Appeal No.126/1996 before the Principal Sessions Court, Sriviliputhur. The Sessions Court, by its judgment, dated 14.7.1998 confirmed the penalty. During the said period, the petitioner did not report for duty and his whereabouts were not known. This fact was brought to the notice of the respondents by the Tahsildar, Thiruchuzhi. Therefore, a further charge was framed against the petitioner on 19.4.1999.The petitioner had submitted an explanation on 25.11.1999. 4.In the meanwhile, the Inspector of Police, Appaianaickenpatti police station reported about the arrest of the petitioner on 13.3.1999 and his being lodged in the Sub Jail, Sattur on 13.3.1999 and 14.3.1999 and thereafter, at the Central Jail, Madurai from 15.3.1999 to 17.8.1999. Hence the petitioner was placed under suspension under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules with effect from 22.12.1999. Subsequently, a charge memo was framed against the petitioner under Rule 17(b) of the Rules. The petitioner did not submit his explanation. On the contrary, the petitioner’s counsel appeared before the respondents and sought permission to peruse the records. Accordingly, permission was also granted. 5.It was claimed by the respondent that the petitioner finally submitted his explanation on 5.5.2000, stating that he was imprisoned for six months at the Central Jail, Madurai. He had also filed an appeal against the order of the Sessions Court. The same is pending before the High Court in Criminal Appeal No.126 of 1996. After considering the explanation of the petitioner, the respondent found that it is unnecessary to wait for the outcome of the case before the High Court and that the convicted person cannot be continued in service. Hence the petitioner was dismissed on 18.5.2000 on the strength of the conviction by the Sessions Court. Hence the petitioner filed the OA as against the dismissal. 6.The learned counsel for the petitioner submitted that the order passed by the respondents was illegal and contrary to the rules. Insofar as the misconduct of cutting tree is concerned, the petitioner was also imposed penalty of postponement of increment for five years. Even subsequently, he was convicted for the very same https://hcservices.ecourts.gov.in/hcservices/ offence. Hence the second punishment cannot be imposed. Further, the authorities have power only to decide the circumstances which led to conviction. In the present case, even before the said conviction, the petitioner was punished. The counsel also placed reliance upon a judgment of the division bench of this court headed by P.K.Misra, J. (as he then was) in D.Narayanan Vs. District Revenue Officer, Virudhunagar, Virudhunagar District and others reported in 2009 (4) MLJ 708. In that case, the division bench found that the petitioner therein was imposed with punishment by department on account of loss sustained. Thereafter the second punishment came to be imposed on account of criminal case ended in conviction. In paragraph Nos.17 and 27, the division bench had observed as follows: "17.Rule 8 of TNCS(D&A) Rules contemplates the penalties which may be imposed upon a person who is a member of the civil service. Items (i) to (iii), (v) and (ix), that is to say censure, fine, withholding of increment or promotion and suspension, are considered as minor penalties; whereas Item Nos.(iv), (vi), (vii) and (viii), that is to say reduction to a lower rank in the seniority list or to a lower post or to a lower time-scale or compulsory retirement, removal from service or dismissal from service are considered to be major penalties. Rule 17(a) contemplates the procedure relating to imposing of minor penalties, as envisaged under Rule 8(i) to (iii), (v) and (ix); whereas Rule 17 (b) contemplates the procedure relating to the imposition of major penalties. Rule 17(c) is only by way of exception to rule 17(b), as apparent from the opening words of Rule 17(c)(i)(1) to the effect that the requirements of sub-rule(b) shall not apply. In other words, a careful and combined reading of all the provisions would make it clear that it is open to the departmental authorities either to follow the procedure contemplated under Rule 17(b) or the procedure contemplated under Rule 17(c). However, when Rule 17 (b) has already been followed and a punishment is imposed, it would not be permissible for the departmental authorities to again subject the very same delinquent to a fresh punishment on the self-same allegation on the ground that such conduct has led to his conviction in a criminal case, which, in our considered opinion, would amount to double jeopardy. ....... 27.In the present case, the disciplinary authority himself has imposed the second punishment on the basis of the very same allegation of temporary misappropriation. Such order of the disciplinary authority cannot be considered as an exercise of power of review of punishment, inasmuch as such punishment https://hcservices.ecourts.gov.in/hcservices/ has been imposed beyond the period of limitation contemplated under the relevant service rules." 7.At the same time, the division bench struck a note of caution in paragraphs 26 and 28, which read as follows: "26.A question may crop up that even after a person is subjected to some insignificant punishment in a departmental enquiry, he may be imprisoned after being convicted in a criminal case based on similar set of allegations and, in such circumstances, whether it would be in the interest of administration to allow such person to continue in service. We do not think that the State or the department is remediless in such a situation. If a person, on account of his conviction is imprisoned and remains absent from service, he can always be penalised for remaining absent from duty. Even otherwise, a departmental authority or the State Government for that matter can always review the punishment by following the procedure contemplated under relevant service rules by altering the initial punishment to some higher punishment. ........ 28.For the aforesaid reasons, we are unable to sustain the subsequent order of dismissal passed by the very same disciplinary authority. The question as to whether the initial punishment deserves to be reviewed by any competent authority is a matter left open, as such a question has not arisen either directly or indirectly in the present case. No costs." 8.If it is seen in the context of the judgment of the division bench, the respondents cannot impose the second penalty on the strength of the criminal court conviction. In the present case, it is not the conviction per-se is the matter, but the circumstances which led the conviction i.e. the petitioner’s conduct of cutting tamarind tree standing in the poramboke land, thereby acting contrary to law. Hence there is no scope for the respondents to invoke the power under Article 311(2)(a) of the Constitution, especially in the present case when he had already been punished for the same misconduct. There are two courses open. If the service rule provides, the State Government can suo motu invoke the power of review for enhancement of penalty and for such power of review, there is no limitation prescribed even though it should be done within a reasonable time. Since the original penalty was made on the petitioner as early as in the year 1988 and more than 22 years have gone, the power cannot be used at this juncture whatever may be the circumstances. But at the same time, in the charge memo issued subsequently on 19.4.1999 regarding absent from duty and not being presented in the village which is considered https://hcservices.ecourts.gov.in/hcservices/ to be a misconduct, an action can always be initiated. The division bench did not prevent such an action being taken. Certainly, the impugned order dismissing the petitioner on the strength of the conviction by the criminal court cannot be countenanced by this court. 9.Hence the writ petition will stand allowed. The impugned order stands set aside. But at the same time, the petitioner cannot automatically be restored to duty. The department is at liberty to proceed with the charge memos, dated 19.4.1999 and 1.2.2000 except the issue relating to conviction by the criminal court. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To The Revenue Divisional Officer, Aruppukkottai, Virudhunagar District. +1cc to M/s. G.Bala & Daisy, Advocate Sr 90891 +1cc to Govt. Pleader Sr 90737 NSM(CO) km/7.1. W.P.NO.45175 of 2006 https://hcservices.ecourts.gov.in/hcservices/