IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.06.2008 CORAM: THE HON'BLE MR.JUSTICE K.VENKATARAMAN WRIT PETITION NO.21794 OF 2006 .. V.Arivuselvan .. Petitioner vs. 1.The State of Tamil Nadu rep. By the Secretary to Government Health and Family Welfare Department Secretariat, Chennai 9. 2.The Director of Medical Education Chepauk, Chennai 5. 3.The Dean Government Mohan Kumaramangalam Medical College Hospital, Salem. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus call for the records in the file of th respondents 2 & 3 in connection with the order passed by them in Rep.No10929/E2/95 dt.4.1.96 and Ref.No.19658/SCIII/96 dt.12.6.96 and quash the same and direct the respondents to reinstate the application with all monetary and service benefits with effect from the date of removal from the service as stated therein. For petitioner : Mr.R.Singaravelan For respondents: Mr.S.Gopinathan Addl.Govt.Pleader .. https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner had approached the Tamil Nadu State Administrative Tribunal, Chennai by filing O.A.No.1102 of 1997, questioning the order passed by the Appellate Authority dated 12.06.1996 confirming the order of removal passed by the Original Authority dated 04.01.1996. The said Original Application had been transferred to the file of this Court and renumbered as W.P.No.21794 of 2006. 2. The short facts which led the petitioner to approach the Tamil Nadu State Administrative Tribunal are set out hereunder: The petitioner was initially selected to the post of Junior Assistant under Rule 10(a)(1) of the Tamil Nadu State and Subordinate Service Rules on compassionate grounds and he was posted on appointment at the Mohan Kumaramangalam Medical College Hospital, Salem in the vacancy caused by one P.Subramaniam, on his promotion to the post of Assistant. The petitioner was appointed to the said post by an order of the second respondent dated 15.06.1992 and he joined service on 22.06.1992. He was placed under suspension by an order dated 03.08.1995 for the reason that he had misappropriated a sum of Rs.1,879/- collected by him in the Hospital Stoppage Section on behalf of the third respondent. A charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, dated 22.08.1995 was issued to him. He has submitted a detailed explanation dated 12.09.1995. Even before that, in the preliminary enquiry held on 02.08.1995, he had admitted that he utilised the said amount due to unavoidable circumstances. After enquiry, he was removed from service by the order of the Original Authority, viz., third respondent, dated 04.01.1996, against which the petitioner preferred an appeal before the second respondent, Appellate Authority. The second respondent, by his order dated 12.06.1996, confirmed the order of the Original Authority dated 04.01.1996. Hence, the petitioner had approached the Tribunal challenging those orders. 3. Mr.R.Singaravelan, learned counsel appearing for the petitioner mainly contended that the Appellate Authority has not given any independent reason for confirming the order of the Original Authority. Further, according to the learned counsel appearing for the petitioner, when the petitioner admitted the guilt and explained the circumstances under which he had utilised the fund collected by him for his personal expenses, the Appellate Authority ought to have considered the said plea made by the petitioner while deciding the appeal preferred by him. The learned counsel further contended that the procedure contemplated under Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules has not been followed by the second respondent while disposing of the appeal preferred by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned Additional Government Pleader appearing for the respondents contended that the Original Authority had considered all aspects while imposing the extreme punishment of removal from service by his order dated 04.01.1996 and the Appellate Authority also, while confirming the order of the Original Authority, by his order dated 12.06.1996, considered the entire aspects of the matter in issue; and hence, the same does not require any reconsideration by this Court. 5. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned Additional Government Pleader for the respondents. 6. The petitioner while preferring an appeal to the second respondent has raised several grounds and some of them are extracted hereunder: " 15. I humbly submit that I was made to admit the mistake and I was promised job security if I remit Rs.1879/-. So, even though the entire mistake was done by the Driver, Sri.Perumal, the complainant, I had admitted as if I had done the misappropriation. 16. xxxxx 17. xxxxx 18. I respectfully submit that at the outset I was imposed with a penalty of removal from the service by the Dean, Govt.Mohan Kumaramangalam Medical College, Salem-1 and the order of removal is excessive and quite contrary to the principles of natural justice. 19. I respectfully submit that the Dean Govt.Mohan Kumaramangalm Medical College Hospital, Salem-1, the disciplinary authority has not applied his mind while deciding my case on the support of the enquiry report because the facts and circumstances which led to me to do that mistake on the compulsion of Sri.Perumal, Driver were not taken into account during the course of enquiry and while finalising my case and while issuing Removal Order. 20. I respectfully submit that I was appointed on compassionate grounds as my father died while in service and on the authority of TNPSC recommendation and concurrence and on the order of your good office and the disciplinary authority the Dean, Govt.Mohan Kumaramangalam Medical College Hospital, Salem-1 had failed to get the permission from your good office https://hcservices.ecourts.gov.in/hcservices/ after the proper and required consultation with the TNPSC before passing the heavier punishment order of Removal." 7. While so, the Appellate Authority did not consider any of the grounds raised by the petitioner in his appeal grounds. After extracting the charges and the contentions, in paragraph 8, the Appellate Authority dealt with the matter in issue and in this regard it would be appropriate to extract the said portion of the order, which reads thus: " 8. The Director of Medical Education has carefully and independently examined the appeal of Thiru V.Arivuchelvan, formerly Junior Assistant independently and carefully with the relevant records. It is viewed that the misappropriation of the Government money is a serious offence and the appellant himself has admitted the irregularity. It is also observed that there is no flaw in the disciplinary case. The Director of Medical Education therefore sees that there is no justification to interfere with the orders of removal passed by the Dean of the hospital. Hence the appeal is rejected." The above extracted portion of the order of the second respondent, Appellate Authority will disclose that the authority has not considered any of the contentions raised on behalf of the petitioner and the authority has merely taken into account the admission made by the petitioner and nothing more. 8. Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules provides the power and procedure of the Appellate Authority for disposing of the appeals, which is extracted hereunder. "Rule.23:Power and Procedure of the Appellate Authorities. (1) In the case of an appeal against an order imposing any penalty specified in Rule 8 or 9 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 pass orders: (i) confirming, enhancing, reducing, or setting aside the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;" https://hcservices.ecourts.gov.in/hcservices/ 9. Thus, the appellate authority has to consider including other things, whether the order of the original authority has to be confirmed, enhanced, reduced or set aside. When specific grounds have been raised by the petitioner explaining the circumstances under which the said amount had been utilised and also pleading for mercy, it is expected that the appellate authority has to consider the said grounds taken by the petitioner. Admittedly, the appellate authority has not considered whether the punishment awarded to the petitioner is on the higher side and whether it requires any modification or reduction. As rightly pointed out by the learned counsel appearing for the petitioner, the appellate authority has not considered whether the punishment of removal imposed by the original authority is adequate or inadequate. 10. The learned counsel appearing for the petitioner further drawn my attention to the judgement of this Court in the case of N.Vanaja vs. The Board of Directors of Tamil Nadu Small Industries Development Corporation Ltd., rep. By its Chairman and another (2006 (4) CTC 52). Paragraphs 3 and 4 of the said judgement are relevant to the facts of the case on hand and the same are extracted hereunder: " 3. It is brought to the notice of this Court, Rule 6.25-A of the Service Rules of Tamil Nadu Small Industries Development Corporation Limited, which contemplates that when an Appeal is preferred imposing penalties specified in Rule 6.15, the Appellate Authority shall consider whether the penalty imposed is adequate, inadequate or severe and pass orders (i) confirming, enhancing, reducing or setting aside the penalty or (ii) remitting the case to the authority which imposed the penalty with such direction as it may deem fit in the circumstances of the case. Rule 6.25-B contemplates that it shall be open to the Appellate Authority to call for the records in respect of any disciplinary proceeding and review any order made under these rules and pass such orders as it may deem fit in the circumstances of the case. 4. After going through the order impugned in the Writ Petition, this Court is prima facie satisfied that the Appellate Authority except informing that after detailed examination a resolution has been passed to reject the Appeal made by the petitioner and confirm the order dated 01.06.2005 passed by the Managing Director, nothing has been stated, has not followed the Rules contemplated under Rule 6.25-A of the above said rules. Except saying that after detailed examination, no reason was given as specified under Rule 6.25-A of the above said service rules as to whether the Appellate Authority had considered that the punishment https://hcservices.ecourts.gov.in/hcservices/ imposed was adequate or inadequate. What is the detailed examination is also not mentioned in that order." The above judgement will clearly show that the Appellate Authority has to record reasons for affirming the order of the Original Authority and that he should consider whether the penalty imposed is adequate, inadequate or severe or not. As discussed earlier, in the case on hand, the Appellate Authority has not considered the said aspect. 11. In yet another decision in the case of Arokiadoss vs. The Deputy Commissioner of Police and another (1989 WLR 274), this Court has held that the Appellate Authority has to consider whether the penalty is excessive, adequate or inadequate. The relevant portion of the said judgement is para 4, which reads thus: " 4. In the present case, the order of the appellate authority does not indicate, whether the appellate authority considered the materials on record in the light of rule 6(1) of the Rules. He should have discussed the relevant evidence and found whether the facts on which the order of the disciplinary authority was based have been established. He should have also considered whether the facts afford sufficient ground for taking disciplinary action and whether the penalty is excessive, adequate or inadequate. As the order of the appellate authority does not show that he has considered the relevant matters prescribed under R.6(1) of the Rules, the order is vitiated. On this ground the order is liable to be quashed." 12. In another decision, viz., Janarthanan, Assistant Executive Engineer, Palacode, Dharmapuri District vs. The Chief Engineer Distribution, Tamil Nadu Electricity Board and others (2004 WLR 636), this Court has held that the appellate authority has to consider all the contentions raised by the delinquent by applying its mind independently. Paragraph 7 of the said judgement is relevant, which is extracted hereunder: " 7. The appellate authority has merely confirmed the order of the disciplinary authority stating that no new points had been urged. If an appeal has been filed, it is the duty of the appellate authority to consider the contentions raised by application of independent mind. That having not been done, such order passed by the appellate authority cannot be sustained." Considering the above facts and circumstances and in the light of the judgements cited above, I am of the firm view that the appellate https://hcservices.ecourts.gov.in/hcservices/ authority has not considered whether the punishment that has been imposed by the original authority is excessive, adequate or inadequate. Hence, the impugned order of the second respondent dated 12.06.1996 is liable to be set aside and accordingly set aside. The matter is remitted to the second respondent and the second respondent is directed to consider all the contentions raised by he petitioner, including whether the punishment imposed by the original authority is excessive, adequate or inadequate, considering the charges framed against the petitioner and he is directed to pass appropriate orders on merits and in accordance with law within a period of three months from the date of receipt of copy of this order. The writ petition is ordered accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kh . To 1.The Secretary to Government State of Tamil Nadu Health and Family Welfare Department, Secretariat, Chennai 9. 2.The Director of Medical Education Chepauk, Chennai 5. 3.The Dean Government Mohan Kumaramangalam Medical College Hospital, Salem. 1 CC To Mr.R. Singaravelan, Advocate, SR NO.28241 1 CC to the Government Pleader, SR NO.28990 Order in W.P.No.21794 of 2006 nm(co) pmk/24.6.08 https://hcservices.ecourts.gov.in/hcservices/