IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.11.2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.14283 OF 2007 (O.A.NO.3027 OF 2003) M.Raman ... Petitioner VS. 1.Government of Tamil Nadu Represented by Secretary to Government Environment & Forest Department Fort St. George, Chennai – 600 009. 2.The Chief Conservator of Forests Social Forestry Chennai – 600 015. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.3027 of 2003 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records of the 1st respondent relating to G.O.(3D) no.70, Environment and Forest (9B) Department, dated 05.11.2002 and the records of the 2nd respondent relating to Pro.A1/3525/91 dated 22.09.1994 quash the same and issue consequential directions to the respondent to (1) regularise the period of suspension from 09.10.1991 to 24.02.1994 as "duty" and (2) to declare that the petitioner shall be deemed to have retired from service on 31.03.1996 An with all benefits and (3) to disburse all pensionary and retirement benefits with 18% interest per annum. For Petitioner : Mr.M.Ravi For Respondents : Mr.N.Inbanathan Government Advocate O R D E R The petitioner joined service in the Forest Department as Forester on 11.02.1958 and he was promoted as Ranger on 11.11.1972. The Chief Conservator of Forests, the second respondent herein, who is the disciplinary authority, placed the petitioner under suspension https://hcservices.ecourts.gov.in/hcservices/ on the ground that an enquiry into the grave charges against the petitioner was contemplated. Suspension order dated 30.09.1991 was issued under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. While placing the petitioner under suspension, the second respondent appointed the Conservator of Forests, Social Forestry Circle, Madurai as an Enquiry Officer. 2.According to the petitioner, since the suspension was contemplating an enquiry, the second respondent ought to have framed a charge sheet and further, he could not appoint the Enquiry Officer before issuing charge sheet. But the second respondent followed a peculiar procedure by appointing the Conservator of Forests, Social Forestry Circle, Madurai, as Enquiry Officer to enquire into the charges, without even framing a charge memo. The second respondent directed the Enquiry Officer himself to frame charges and also to conduct enquiry on the charges. 3.While so, the Conservator of Forests, Social Forestry Circle, Madurai, issued a charge sheet dated 05.02.1992 under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, levelling 11 charges against the petitioner. The Enquiry Officer held that charge Nos.3, 4 and 5 alone were proved. 4.Based on the findings of the Enquiry Officer, the second respondent passed an order dated 25.02.1994 imposing the punishment of recovery of a sum of Rs.30,163/- from the petitioner and ordering recovery from the salary of the petitioner in 20 monthly installments. While passing the aforesaid orders, the second respondent revoked the suspension, but treated the period of suspension as leave period, by an order dated 22.09.1994. According to the petitioner, the same was done by the second respondent without issuing any notice as required under FR 54. 5.The petitioner preferred an appeal against the aforesaid punishment order dated 25.02.1994 before the Principal Chief Conservator of Forests, who is the appellate authority and the appellate authority allowed the appeal preferred by the petitioner by an order dated 02.06.1995. In para 5 of the said order, it has been held that the disciplinary authority committed error in permitting the Enquiry Officer to frame charges and to enquire into the matter and that he cannot act both as a Prosecutor as well as a Judge. The appellate authority remitted the matter to the second respondent to proceed from the stage at which the defect had crept in. 6.In this case, the defect had crept in at the very initiation of the disciplinary proceedings itself, since the second respondent Disciplinary Authority failed to issue charge memo before appointing the Enquiry Officer. Even after the remand, the second respondent Disciplinary Authority failed to frame charge sheet and on the other hand, another Enquiry Officer was appointed. The said https://hcservices.ecourts.gov.in/hcservices/ Enquiry Officer recorded a finding that charge Nos.3, 4, 5, 9 and 10 were proved, in his report dated 09.03.1996. The petitioner gave his explanation on 16.03.1996 on the report of the Enquiry Officer. The petitioner reached the age of superannuation on 31.03.1996. Without passing final orders, he was placed under suspension vide order dated 28.03.1996 and he was not permitted to retire from service. 7.After a lapse of five years, the first respondent, by an order dated 20.09.2001 revoked the suspension. The first respondent also passed an order in G.O.(3D) No.70, Environment and Forests Department, dated 05.11.2002 imposing the very same punishment of recovery of Rs.30,163/- from the DCRG and also imposed cut in pension at the rate of Rs.30/- per month for two years. 8.The petitioner filed Original Application in O.A.No.3027 of 2003 seeking to quash the order dated 22.09.1994 of the second respondent treating the period as leave period and the order in G.O. (3D) No.70, Environment and Forests Department dated 05.11.2002 of the first respondent and for a direction to regularise the period of suspension from 09.10.1991 to 24.02.1994 as duty period and to declare that the petitioner is deemed to retire from service on 31.03.2006 with all benefits and to dispose of the benefits with interest. 9.The respondents filed reply affidavit refuting the allegations made by the petitioner. 10.In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.14283 of 2007. 11.Heard both sides. 12.The learned counsel for the petitioner submits that when the appellate authority passed the order dated 02.06.1995 setting aside the entire disciplinary proceedings including the charge memo, the second respondent ought to have framed a fresh charge memo on remand. Hence, the entire disciplinary proceedings resulting in the punishment order dated 05.11.2002 is vitiated. He further submits that when the appellate authority set aside the entire disciplinary proceedings by the order dated 02.06.1995, the earlier period of suspension from 09.10.1991 to 24.02.1994 could not be treated as leave period and the said period should be treated as "on duty". The learned counsel further submits that since there was an inordinate delay in passing the final order dated 05.11.2002, though the petitioner submitted his explanation as early as on 16.03.1996, the same is bad, illegal and also that the petitioner is entitled to interest for the belated payment of terminal benefits. https://hcservices.ecourts.gov.in/hcservices/ 13.On the other hand, the learned Government Advocate has sought to sustain the impugned order based on the reply affidavit. 14.I have considered the submissions made on either side and perused the materials available on record. 15.The second respondent placed the petitioner under suspension by an order dated 30.09.1991, which reads as follows: "Whereas an enquiry into grave charges against Thiru M.Raman, Ranger is contemplated And whereas in the circumstances of the case it is necessary in the public interests to place the said Thiru M.Raman, Ranger under suspension from service Now, therefore under sub-rule (e) of rule 17 of the Tamil Nadu Civil Services (Classification, Control & Appeal) Rules, the said Thiru M.Raman is, with immediate effect placed under suspension from service until further orders. 2.During the period of suspension, the said Thiru M.Raman, Ranger will be paid subsistence allowance and dearness allowance admissible under FR 53(1). The headquarters of the said Thiru M.Raman, Ranger, during the period of suspension shall be Madurai and the said Thiru M.Raman, Ranger shall not leave the headquarters without obtaining the prior permission of the authority concerned." In the suspension order, it is stated that the petitioner was placed under suspension contemplating enquiry into grave charges. Therefore, the second respondent ought to have framed charge sheet under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. However, the second respondent did not do so and on the other hand, issued proceedings dated 30.09.1991 appointing the Conservator of Forests, Social Forestry Circle, Madurai as Enquiry Officer and the Enquiry Officer was directed to frame charges against the petitioner. Accordingly, The Enquiry Officer issued a charge sheet dated 05.02.1992 levelling 11 charges against the petitioner. The Enquiry Officer held that charge Nos.3, 4, and 5 were proved. Based on the findings of the Enquiry Officer, the second respondent passed the order dated 25.02.1994 ordering recovery of a sum of Rs.30,163/- from the salary of the petitioner in 20 monthly installments. By another order dated 22.09.1994, the second respondent revoked the suspension and treated the suspension period as leave period. Against the said order, the petitioner preferred an appeal before the appellate authority and the appellate authority https://hcservices.ecourts.gov.in/hcservices/ allowed the appeal and remitted the matter back to the second respondent to proceed from the stage at which the defect had crept in, by the order dated 02.06.1995. In the said order, the appellate authority held that the Enquiry Officer could not frame charge sheet as well as he could not act as an Enquiry Officer. In this regard, para 5 of the aforesaid order dated 02.06.1995 is extracted hereunder: "5.In this case both acts viz., framing of charges and conducting the enquiry have been done by Thiru T.K.Srinivasan, IFS. Hence, the whole method of disciplinary action is vitiated by a major flow that no one can act both as a prosecutor as well as a Judge." 16.In these circumstances, the second respondent ought to have framed charge sheet. In fact, even at the first instance, the second respondent ought to have framed charge sheet, thereafter only the Enquiry Officer should have been appointed, as rightly contended by the learned counsel for the petitioner. Even after remand, the second respondent failed to frame charge sheet. Further, another enquiry was conducted and the Enquiry Officer held that charge Nos.3,4,5, 9 and 10 were proved vide his report dated 09.03.1996. The petitioner gave his further explanation on the report of the Enquiry Officer on 16.03.1996. Subsequently, the petitioner was placed under suspension by the order dated 28.03.1996 on the eve of his retirement dated 31.03.1996. By an another dated 28.03.1996, he was not permitted to retire from service. While so, after a lapse of five years, the impugned order in G.O.(3D) No.70, Environment and Forests Department, dated 05.11.2002 was passed by the first respondent imposing the punishment of recovery of Rs.30,163/- from DCRG and cut in pension at the rate of Rs.30/- per month for two years. 17.In my view, the learned counsel for the petitioner is correct in his submission that there is no explanation on the part of the first respondent for the long delay in passing the final order. Furthermore, the very initiation of disciplinary proceedings itself is defective. Even after remand, fresh charge sheet was not framed and also the charge sheet framed by the earlier Enquiry Officer could not be taken as charge sheet, in view of the order of the appellate authority. The Enquiry Officer has no authority to frame the charges and he could only enquire into the charges. In any event, when the appellate authority passed the order dated 02.06.1995 setting aside the punishment order by pointing out the serious defect in the disciplinary proceedings, the order dated 22.09.1994 treating the suspension period from 09.10.1991 to 24.02.1994 as leave period is not justified. Hence, the order dated 22.09.1994 of the second respondent is bad, illegal and arbitrary. https://hcservices.ecourts.gov.in/hcservices/ 18.In the aforesaid circumstances, the petitioner was unjustly not permitted to retire from service and he was kept under suspension for a long period and the final order was passed in 2002 only that is, after a delay of six years. Thus, the impugned order dated 05.11.2002 in G.O.(3D) No.70, Environment and Forests Department of the first respondent is liable to be set aside. Accordingly, the impugned orders are quashed and a direction is issued to the respondents to treat the suspension period from 09.10.1991 to 24.02.1994 as "duty period". It is also declared that the petitioner is deemed to have retired from service on 31.03.1996 19.Since, the impugned orders are quashed, the petitioner is entitled to interest at the rate of 10% for the belated payment of terminal benefits, as per the Division Bench judgment of this Court in GOVT. OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, CHENNAI AND ANOTHER VS. M.DEIVASIGAMANI [2009 (3) MLJ 1]. Accordingly, a direction is issued to the respondents to pay interest at the rate of 10% on the belated payment of terminal benefits, within a period of eight weeks from the date of receipt of a copy of this order. 20.The writ petition is ordered in the above terms. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar TK To 1.The Secretary to Government Government of Tamil Nadu Environment & Forest Department Fort St. George, Chennai – 600 009. 2.The Chief Conservator of Forests Social Forestry Chennai – 600 015. + 1 cc to Mr.M. Ravi, SR.69250 + 1 cc to Special Government Pleader Sr.69104 W.P.NO.14283 OF 2007 (O.A.NO.3027 OF 2003) BS(CO) Eu 14.12.11 https://hcservices.ecourts.gov.in/hcservices/