IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.8.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.27778 of 2006 (T) O.A.No.4586 of 1996 M.D.Mathivanan .. Petitioner vs. 1. The Government of Tamil Nadu represented by the Secretary to Government The Revenue Department Fort St. George, Madras-9 2. The Special Commissioner and Commissioner for Revenue Administration Chepauk, Madras-5 3. The District Collector Salem, Salem District 4. The District Revenue Officer Salem, Salem District 5. The Revenue Divisional Officer Sankari, Salem District .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certioarified Mandamus to call for the entire records pertaining to the impugned order of punishment of stoppage of increment for 5 years with cumulative effect passed by the second respondent in his proceedings Na.Ka.A3/34417/94, dated 16.3.1995, quashed and further direct the respondents to award all the consequential arrears of increments. For petitioner : Mr.K.Thennan For Respondents : Mr.B.K.Girish Neelakantan Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner has stated that he was appointed as a Village Administrative Officer, on 12.4.1984, through the Tamil Nadu Public Service Commission. Initially, he was posted in Dharmapuri District and later, he was transferred to Salem District, during the year 1988. At the time of the filing of the original application he was serving as a Village Administrative Officer at Puduppalayam in Thiruchencode Taluk, Salem District. He was suspended from service, on 2.11.1991, and the order of suspension had been revoked by the Revenue Divisional Officer, Sankari, after a period of six months, on 15.4.1992. The Tahsildar, Thiruchencode, by his proceedings, dated 20.12.1991, had directed the petitioner to appear before him, on 21.12.1991, for a preliminary enquiry regarding the collection of land revenue pertaining to the fasali 1400 at Pallipalayam Agragaram Village. After the petitioner had left, the Tahsildar had examined five pattadars of Pallipalayam Agragaram Village. The petitioner was not given an opportunity to participate in the preliminary enquiry made with the five pattadars. However, the Tahsildar, had recorded the statements of the Village pattadars in his absence. 2. It has been further stated that, based on the preliminary enquiry, the fourth respondent, by his proceedings, dated 31.12.1991, had issued a charge memo, under Rule 17(b) of the of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charge memo contained a questionnaire form. The list of witnesses to be examined on behalf of the respondents and the list of documents, which were being relied, had not been furnished to the petitioner as required under law. The copies of the statement of the prosecution witnesses, examined by the Tahsildar during the preliminary enquiry, had not been given. The Documents based on which the charge memo was made, were not furnished to the petitioner. In such circumstances, the petitioner had made a representation, on 9.1.1992, requesting the Revenue Divisional Officer to furnish the list of witnesses and the documents necessary for the petitioner to submit his explanation. However, without complying with the request of the petitioner, the Revenue Divisional Officer issued an order of punishment against the petitioner. The punishment imposed on the petitioner is stoppage of increment for three years, with cumulative effect. The said order was issued by the fifth respondent, vide his proceedings No.8623/91 A, dated 25.4.1992. The said order had been issued without holding an oral enquiry and without furnishing the enquiry report to the petitioner. Therefore, the petitioner had filed an appeal to the District Revenue Officer, Salem, challenging the order of the fifth respondent, dated 25.4.1992. Since the District Revenue Officer, Salem, the fourth respondent herein, had not passed any order, the petitioner had filed an appeal to the second respondent, namely, the Special Commissioner and Commissioner for Revenue Administration, Madras. https://hcservices.ecourts.gov.in/hcservices/ 3. It has been further stated that the second respondent had given a notice to the petitioner calling for an explanation asking the petitioner to show cause as to why the punishment imposed on the petitioner should not be enhanced. The said notice, is dated 14.7.1994. The petitioner had given his explanation to the show cause notice, on 13.9.1994. The second respondent, without holding any enquiry and without giving any further opportunity to the petitioner, had enhanced the punishment into stoppage of increment for five years, with cumulative effect, with a specific condition that it would affect the future pensionary benefits of the petitioner. The said order had been issued by the second respondent in Na.A3/34417/94, dated 16.3.1995. Thereafter, the petitioner had filed an appeal before the first respondent, on 30.7.1995. No orders were passed by the first respondent in the said appeal. In such circumstances, the petitioner has preferred an original application before the Tamil Nadu Administrative Tribunal in O.A.No.4586 of 1996, which has been transferred to this Court and renumbered as W.P.No.27778 of 2006. 4. In the reply affidavit filed on behalf of the respondents, it has been stated that while the petitioner was working as an Village Administrative Officer, Pallipalayam Agragaram Village, he had misappropriated the kist amount of Rs.4,955.60/- and therefore, he was suspended from duty in Roc.8623/91, dated 2.11.1991, issued by the fifth respondent. Pursuant to the said suspension order, the petitioner had remitted Rs.5,000/-, on 4.11.1991. After an enquiry and on examination of the records, five charges were framed against the petitioner in Roc.8623/91/A, dated 31.12.1991, of the fifth respondent, under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The Tahsildar, Tiruchengode, who was appointed as an enquiry officer, by the proceedings of the fifth respondent, dated 17.1.1992, had made an enquiry from the pattadars as well as from the petitioner. He had also obtained the statements from them. Though the petitioner was given an opportunity of perusing the records, he did not avail the same. He did not desire for any oral or personal enquiry, as evident from his explanation. Further, the petitioner had not denied the main charge of misappropriation. However, an enquiry officer was appointed to enquire into the matter. After a thorough enquiry, he had submitted a report. Based on the said report of the enquiry officer, the punishment was awarded to the petitioner. Since the punishment awarded to the petitioner was not adequate, with reference to the gravity of the charges, the second respondent had decided to review the case, under Rule 36(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and accordingly, a show cause notice had been issued to the petitioner in Roc.A3/34417/94, dated 14.7.1994, asking the petitioner as to why an enhanced punishment of stoppage of increment for five years with cumulative effect, should not be imposed on him for the charge of misappropriation. The petitioner had submitted his explanation, on 13.9.1997. After examining the explanation and the relevant records relating to the matter, it was found that out of the five charges, four https://hcservices.ecourts.gov.in/hcservices/ of them had been held as proved. Hence, the second respondent had issued orders in his proceedings Roc.A3/34417/94, dated 16.3.1995, enhancing the punishment of stoppage of increment from three years to five years, with cumulative effect. 5. The contention of the petitioner that he was not given sufficient opportunity has been denied. In fact, the petitioner had been given sufficient opportunity to offer his explanation and he was also permitted to peruse the records in person, before the responsible officer. However, the petitioner did not avail the opportunity. An enquiry officer had also been appointed and the petitioner had appeared before the enquiry officer and he had also given his statement. After the examination of the records of the enquiry, the fifth respondent had issued orders in his proceedings 8623/91, dated 15.4.1992, awarding him a punishment of stoppage of increment for three years, with cumulative effect. After receipt of the preliminary enquiry report and on examination of the records, five charges were levelled against the petitioner and an enquiry officer had also appointed, on 17.1.1992, to enquire into the allegations. The petitioner in his explanation, dated 20.1.1992, had not denied the charge of misappropriation. The enquiry officer appointed in the disciplinary case had enquired the petitioner and some pattadars of the Village and obtained statements to that effect. Hence, the contention of the petitioner that he was not given sufficient opportunity to put forth his case cannot be accepted. 6. It has also been stated that the second respondent, who is the Head of the Department of the Revenue Department is directly under the State Government who is competent to exercise his powers to invoke the provisions contemplated under Rule 36(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The District Revenue officer, composite Salem District, is the appellate authority in the present case and he can invoke the provision of 'suo motu revision' as laid down under Rule 36(1) (ii), within six months from the date of the order proposed to be reviewed. The order of punishment in this case was issued, on 15.4.1992 and the time limit of six months was over by 24.10.1992. Since the second respondent, who is the competent authority to take up the suo motu revision, under Rule 36(1) (ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, can, at any time, confirm, reduce, enhance or set aside the order, had taken the suo motu revision of the case and had issued the show cause notice to the petitioner, on 14.7.1994 and thereafter, ordered an enhancement of punishment as the charge of misappropriation was held proved. Since the petitioner had deserved a deterrent punishment for the proved charge of the misappropriation, the second respondent had enhanced the punishment awarded to him from stoppage of increment for three years, with cumulative effect, to that of stoppage of increment for five years, with cumulative effect. Thus, the order awarding the punishment to the petitioner by the second respondent by his proceedings, dated 16.3.1995, is in order. https://hcservices.ecourts.gov.in/hcservices/ 7. The learned counsel appearing for the petitioner had submitted that the punishment awarded to the petitioner by the second respondent, in his proceedings A3/34417/94, dated 16.3.1995, is against the principles of natural justice and equity. The Revenue Divisional Officer had not appointed anyone to enquire into the charge memo, dated 31.12.1991, as contemplated, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. No oral enquiry was conducted, as contemplated under the said Rule. The order dated 25.4.1992, passed by the fifth respondent and the consequential order, dated 16.3.1995, enhancing the punishment, issued by the second respondent, are contrary to the rules applicable to the case. Since no oral enquiry was conducted, the petitioner was denied the opportunity of giving evidence, both oral and documentary, in support of his case. The relevant documents were not furnished to the petitioner before he was awarded with the major penalty of stoppage of increment for five years, with cumulative effect. 8. The main contention of the learned counsel appearing for the petitioner is that, according to Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the power of suo motu revision can be exercised by the second respondent, within six months from the date on which the order sought to be revised had been passed. In the present case, the order of the fifth respondent imposing the punishment of stoppage of increment for three years, with cumulative effect had been issued, on 25.4.1992. The second respondent had issued the show cause notice, proposing to revise the order of punishment already awarded to the petitioner, on 14.7.1994. Thereafter, the second respondent had issued the revised order of punishment of stoppage of increment of five years, with cumulative effect, on 16.3.1995, which is under challenge in the present writ petition. Thus, it is clear that the second respondent had not passed the impugned order within the time limit of six months prescribed under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and therefore, the impugned order is liable to be set aside as it is invalid in the eye of law. 9. The learned Additional Government Pleader, appearing for the respondents, has not been in a position to show as to how the order passed by the second respondent, on 16.3.1995, invoking the power of suo motu revision, under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, is sustainable. No records had been placed before this Court by the learned Additional Government Pleader appearing for the respondents to substantiate his claim that the impugned order, dated 16.3.1995, has been passed within the time limit of six months provided, under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. No doubt, the petitioner deserves the deterrent punishment, if it has been proved that he had indulged in misappropriation of public funds or that he was found to be involved in corrupt practices. However, in the present case, there is nothing https://hcservices.ecourts.gov.in/hcservices/ shown, on behalf of the respondents, to substantiate the claims made on their behalf that the order of the second respondent, dated 16.3.1995, is valid in accordance with the suo motu power of revision said to be vested in the second respondent, under Rule 36 of the said rules. Unless, it is shown by the second respondent that the power of suo motu revision has been exercised by him as prescribed by Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the order passed by him, on 16.3.1995, invoking the said power cannot be said to be valid in the eye of law. Since it could not be shown that the power has been exercised by the second respondent as prescribed under the said Rules, it is liable to be set aside. Hence, the order of the second respondent, dated 16.3.1995, is set aside. However, it is made clear that the earlier order passed by the fifth respondent, on 25.4.1992, awarding the punishment of stoppage of increment for three years, with cumulative effect, would remain unless it has been challenged in some other appropriate proceedings, in the manner known to law, as it has not been challenged in the present writ petition. In view of the order passed in the present writ petition, the retiral benefits due to the petitioner shall be paid to him, within a period of twelve weeks from the date of receipt of a copy of this order. For the foregoing reasons, the writ petitions stands allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Secretary to Government The Government of Tamil Nadu The Revenue Department Fort St. George, Madras-9 2. The Special Commissioner and Commissioner for Revenue Administration Chepauk, Madras-5 3. The District Collector Salem, Salem District https://hcservices.ecourts.gov.in/hcservices/ 4. The District Revenue Officer Salem, Salem District 5. The Revenue Divisional Officer Sankari, Salem District 1 cc To Mr.K. Thennan, Advocate, SR.42099. 1 cc To The Government Pleader, SR.42269. W.P.No.27778 of 2006 (T) O.A.No.4586 of 1996 SGL(CO) RVL 20.08.2008 https://hcservices.ecourts.gov.in/hcservices/