IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.9.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Petition No.18771 of 2008 R.Sivakumar .. Petitioner Vs. 1. The Collector, Kanchipuram District, Kanchipuram. 2. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai-600 005. (Second respondent impleaded as per order dated 19.8.2011 in M.P.No.1 of 2011 in W.P.No.18771 of 2008) .. Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari to call for the records of the first respondent in Proceedings No.67671/2001/F2, dated 27.10.2006 and 14.12.2007 and quash the same. For petitioner : Mr.K.Venkataramani, Senior Counsel for M/s.M.Muthappan For respondents: Ms.V.M.Velumani, Spl.G.P. ORDER A challenge has been made to the show cause notice dated 27.10.2006 and to the order of punishment of censure passed by the first respondent in proceedings No.67671/2001/F2, dated 14.12.2007, seeking to quash the same. 2. The case of the petitioner is as follows: (a) The petitioner was working as Tahsildar in Kancheepuram Revenue Unit. His services were lent to Chennai Metropolitan Development Authority (for short, 'the CMDA') as Special Tahsildar, Land Acquisition, Maraimalai Nagar Scheme, Maramalai Nagar from 30.9.2005 to16.2.2007 on foreign service. His pay and allowances were paid from the funds of the CMDA, Chennai. The Office of the Special Tahsildar, Land Acquisition, Maraimalai Nagar Scheme was started during the year 1973 with ten units. This was reduced gradually and https://hcservices.ecourts.gov.in/hcservices/ now only functioning as only one unit and all the posts were disbanded in 2002 and from 2004 onwards, this unit is functioning with one Special Tahsildar, one Assistant, one Typist and one Surveyor. (b) When the petitioner was working under the Chief Executive Officer, CMDA, Chennai, he specially instructed the petitioner to attend the works relating to the LAOP files and other works allotted by the Deputy Planner, CMDA, Chennai. The Deputy Planner instructed the petitioner to conduct a field survey to find out the details of vacant lands available under Maraimalai Nagar Housing Scheme and the details of the lands not handed over to CMDA. The Deputy Planner also instructed to complete the work by 31.12.2005. (c) Based on the above instructions, the field survey was undertaken with one Surveyor and Assistant for 1850 acres of lands in the villages Tirukatchur, Chengundram, Kattankulathur, Potheri, Ninnakarai, Sithamanur and Kilkaranai. The detailed report on the filed inspection was submitted to CMDA, Chennai. This work was attended till 31.12.2005. The LAOP cases were also attended by the petitioner and in respect of these cases, the Government Pleader has to be consulted for each and every case personally and to give him the required details. (d) While the petitioner was working as Special Tahsildar, CMDA, Maraimalai Nagar Scheme, Maraimalai Nagar, the Collector of Chingalpet on 27.10.2006 issued a charge memo under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in Memo Rc.No.67671/2001/F2, for not furnishing certain details called for in the Office of the Special Tahsildar, Maraimalai Nagar Scheme, Maraimalai Nagar, prior to the petitioner taking over charge in the Office of the Special Tahsildar, Maraimalai Nagar Scheme, CMDA, Maraimalai Nagar. The petitioner's predecessor did not furnish the details called for by the Collector, Kanchipuram due to the obvious reason that the winding of the office and the same functioning with skeleton staff only and therefore, the records pertaining to the old period were not readily traceable. (e) The substance of the charges framed against the petitioner, is as follows: (1) (a) The award amount of Rs.1,30,839.40 was deposited in Civil Court Deposit in the Sub-Court, Chengalpattu Custody on 28.9.1989 for 1.66 acres of lands acquired in S.No.289/1A, 289/3, 290/1A and 290/3 of Kattankolathur Village, Chengalpet Taluk as per Section 31 (2) of the Land Acquisition Act, 1894. In order to obtain the amount from the Court custody and to hand over the amount to the requisitioning department and to send a report to Government, certain details were called for by the Collector of Kanchipuram in his letter https://hcservices.ecourts.gov.in/hcservices/ No.60684/1986/F2, dated 18.2.2005 and the report called for was not furnished. (b) In respect of 0.11 acres of land acquired in Kattakkolathur Village in S.No.306/1A3, W.P.No.10775 of 1989 filed in the High Court was dismissed and therefore, the details of award amount granted and to initiate action under Section 47 of the Land Acquisition Act, 1894 and to send final check memo report called in letter No.111224/1986/F2, dated 31.1.2000 and the report was not yet received. (c) In respect of 0.95 acres of land acquired in Chitamanur Village in S.No.44/2, the check memo report was called for in letter No.64142/1990/F2, dated 2.8.2004 and the same was not furnished. (2) The diary from February 2006 to September 2006 were not received from the Special Tahsildar, Maraimalai Nagar Scheme, CMDA, Maraimalai Nagar and thus the periodical register could not be maintained properly and thus the files could not be disposed. (3) In respect of the pending check memo files of Maraimalai Nagar Scheme, two surveyors were deputed to collect the details and they were informed that these work could not be attended by Surveyours since the petitioner had sent them by saying that he had to attend the office of the CMDA, High Court and Special Commissioner and Commissioner for Land Administration and the surveyors were returned without discharging their work. The petitioner denied all the allegations levelled against him and submitted detailed explanation in his representation dated 16.10.2007. (f) The petitioner submitted in the explanation that the alleged imputation 1(a) is not tenable, in view of the reason that the above letter was received by the petitioner's predecessor and due to winding up of the Maraimalai Nagar Scheme Office and now functioning with minimum skeletal staff of one unit only, the file pertaining to the year 1989 was not traceable immediately. This fact was informed by the petitioner's predecessor on 29.4.2005 and 19.5.2005. The petitioner states that after he took charge, sincere steps were taken by him to trace out the file and the same could not be located and the fact was informed by the petitioner on 5.10.2005, 14.11.2005 and 10.1.2006. In respect of land acquisition matters, parallel records are available in the Collector's office itself and therefore, they could have taken suitable action based on the records available with them, instead of calling for these details from the office. Thus, the imputation 1(a) is not maintainable. The alleged imputation 1(b) is not maintainable in view of the reason that action under Section 47 of the Land Acquisition Act, 1894 is to be initiated only by the Chengalpet Taluk Tahsildar. Therefore, the Chengalpet Taluk Tahsildar, Chengalpet was requested by the Special Tahsildar, https://hcservices.ecourts.gov.in/hcservices/ Maraimalai Nagar Scheme in letter No.142/2002, dated 15.2.2005 and his report is awaited. Only on receipt of his report, final report could be sent to the Collector. Therefore, the imputation was levelled against the petitioner with motive and malice. The alleged imputation No.1(c) is not maintainable and the final check memo report was submitted to the Collector on 26.9.1988. Therefore, without properly verifying the records, this imputation is levelled against the petitioner. (g) The alleged imputation No.2 is not maintainable, in view of the reason that the petitioner's diaries from February 2006 to September 2006 were handed over by the petitioner in person in the office of the CMDA, Chennia-8 and Collector's Office as per the details furnished below: Month of Diary Date on which handed over in the Collector's Office February 2006 6.3.2006 March 2006 3.4.2006 April 2006 5.5.2006 May 2006 2.6.2006 June 2006 4.7.2006 July 2006 3.8.2006 August 2006 4.9.2006 September 2006 4.10.2006 The charge specified that due to non-receipt of these diaries, the periodical register could not be maintained properly and the files could not be disposed. The petitioner submits that inspite of the above fact, the charge is framed with bias and prejudice. (h) The alleged imputation No.3 is not maintainable. The surveyors deputed from the Collectorate were provided with all connected files on 16.10.2006 and to prepare the final check memo report and they being non-conversant with the preparation of final report, they could not prepare the final report and they returned to their office. This was taken as contra and thus the imputation was levelled against the petitioner. The surveyors Mr.Murali and Mr.Subramani who were deputed, informed that the above work is clerical in nature and the surveyor could not do the same and did not discharge their duties left out scot-free. (i) According to the petitioner, the show cause notice/memo was issued to him on 27.10.2006 under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. It was served on the petitioner on 29.5.2007. In obedience to that, the petitioner https://hcservices.ecourts.gov.in/hcservices/ submitted his explanation on 16.10.2007. The petitioner has not contended in the explanation that the proceedings were initiated by the lending department for the alleged lapse committed under the borrowing department and still working there. The petitioner was under the impression that his explanation will be accepted and he will be exonerated. However, the petitioner was punished. The petitioner challenges the said order of punishment on the ground that since the proceedings themselves were initiated against Rule 16-B of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, the show cause notice-memo issued by the Collector, Kanchipuram, is not maintainable. In view of the biased and prejudiced attitude in framing the memo/show cause notice, the petitioner has not preferred any appeal to the Special Commissioner and Commissioner for Revenue Administration, Chennai. The order of punishment of censure imposed by the fist respondent dated 14.12.2007 and the show cause notice dated 27.10.2006, are liable to be quashed. 3. The first respondent has filed counter affidavit inter-alia stating as follows: (i) The Office of the Special Tahsildar (LA), Maraimalai Nagar Scheme was created during the year 1973 with ten units and subsequently reduced gradually on account of completion of work at certain stages and has been functioning with one unit from the year 2004 having one Special Tahsildar, one Assistant, one Typist and one Surveyor. The writ petitioner was working as Special Tahsildar from 30.9.2005 to 16.2.2007. During his tenure of office, certain irregularities of misconduct were noticed and the Collector of Kanchipuram District at Kanchipuram issued a charge memo to him under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in Rc.No.67671/2001.F2, dated 27.10.2006. He was given reasonable opportunity to submit his explanation. Accordingly, he submitted his explanation. The Collector held all the three charges framed against him as having been proved and awarded the minimum punishment of censure, against which, the petitioner has filed this Writ Petition. (ii) The contention of the petitioner that in respect of the land acquisition matters, parallel records are available in the Collector's Office itself, and therefore, they could have take suitable action based on the records available with them, instead of calling for these details from his office, is unwarranted. The petitioner has stated that the file pertaining to the year 1989 was not traceable immediately and from this, it is evident that he has not taken any sincere efforts to trace out the same and send the report. As a subordinate authority, the petitioner's duty is to carry out what is expected from him. (iii) The contention that the report of the Tahsildar, Chengalpet was awaited and that only on receipt of his report, final https://hcservices.ecourts.gov.in/hcservices/ report could be sent to the Collector, is not convincing. The petitioner has stated that the final check memo report was submitted to the Collector on 26.9.1988, which is not relevant. The final check memo was called for in respect of 0.95 acre of land in S.No.44/2 of Chitamanur Village, vide Rc.No.64142/1990.F2, dated 2.8.2004 and reminders thereon, but no report had been received from him till passing of the orders in the disciplinary proceedings. It is not true or correct to say that without properly verifying the records, the imputation is levelled against him. The allegation that the imputation is levelled against him with motive and malice, is denied as untrue, incorrect and imaginary. (iv) The petitioner has stated that his diaries from February 2006 to September 2006 were handed over by him in person in the office of CMDA, Chennai-8 and Collector's Office and has furnished the dates on which he handed over the diaries from February 2006 to September 2006 on 6.3.2006, 3.4.2006, 5.5.2006, 2.6.2006, 4.7.2006, 3.8.2006, 4.9.2006 and 4.10.2006, in the Collector's office. The petitioner has furnished copies of diaries for these months along with his explanation dated 16.10.2007. The entries of the relevant dates state only office work and do not say anything that these diaries were handed over by him in person in the Collector's office, as alleged. The petitioner has furnished false information and his allegation that the charge is framed with bias and prejudice, is incorrect and imaginary. (v) With regard to the averments in paragraph 10 of the affidavit, the allegation in charge No.3 is that the petitioner has not utilized the services of the two surveyors deputed to his office in the preparation of final check memos and that he sent them back without caring the orders of the higher officers. The petitioner contends that the surveyors themselves returned stating that they were not conversant with the clerical work of preparing the final check memo and that he did not send them back. The petitioner has not sent any such report immediately or at any point of time subsequently that the surveyors sent by the Collectorate of their own accord returned without attending to the work entrusted to them. What is now stated by the petitioner in this paragraph, is only an after-thought and only after the charge is levelled against him. (vi) Rule 16-B of the Tamil Nadu Civil Services (Discipline and Appeal) Rules relates to the borrowing authority taking action against an official borrowed from other department and it is not the provision for the lending authority to take action against that official. The present action taken by the Collector has not been under the said Rule16-B also. The petitioner was lent to the CMDA, Chennai to carry out land acquisition proceedings under the Land Acquisition Act, under which the Collector is the controlling authority over the petitioner to check and supervise the functioning of the petitioner as Special Tahsildar (LA). As such, the Collector https://hcservices.ecourts.gov.in/hcservices/ taking action against the petitioner for his misconduct as alleged in the charges is not without jurisdiction and Rule 16-B referred to by the petitioner is not relevant. The disciplinary proceedings against the petitioner is not biased and not against any procedure laid down in the said Rules. The proceedings are legally and constitutionally valid and maintainable. (vii) The petitioner admits that he has not raised any objection while submitting his explanation dated 16.10.2007 to the show cause notice served on him on 29.5.2007. The disciplinary proceedings are not under Rule 16-B, but is only under Rule 17(a) of the said Rules, under which, the Collector as the controlling authority as well as the appointing authority is competent to take action for the misconduct on the part of the petitioner in the discharge of his duties as Special Tahsildar (LA). The disciplinary proceedings, the show cause notice and the consequent order awarding punishment of censure, are legally and constitutionally valid and maintainable and are not liable to be quashed. (viii) The explanation of the petitioner was considered carefully with reference to the records before passing the orders of punishment. The allegation of bias and prejudiced attitude is denied. The petitioner did not prefer appeal to the Special Commissioner and Commissioner of Revenue Administration and after lapse of the appeal time, he has filed this Writ Petition. The petitioner has not come to the Court with clean hands. Therefore, the show cause notice dated 27.10.2006 and the order dated 14.12.2007 passed by the Collector, are not arbitrary and not illegal and are not liable to be quashed, as the Collector being the controlling authority, he is competent to make such an order and therefore, prayed for dismissal of the Writ Petition. 4. Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner in his submissions, mainly contended that the first respondent passed a non-speaking order without assigning any reason for imposing the punishment. After extracting the proceedings, without assigning any reason therefor, for acceptance of the said proceedings, the first respondent passed the impugned order mechanically. Learned Senior Counsel further pleaded that the petitioner has not availed of the remedy of appeal on the ground that the show cause notice dated 27.10.2006 was biased and prejudiced in framing the charges. In support of his submissions, learned Senior Counsel appearing for the petitioner relied on a decision of the Supreme Court reported in 2009 (4) SCC 240 (Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney). 5. On the other hand, Ms.V.M.Velumani, learned Special Government Pleader appearing for the respondents submitted that what is challenged by the petitioner is only an order of minor punishment of censure for his misconduct, passed by the competent authority, https://hcservices.ecourts.gov.in/hcservices/ namely the District Collector, who is the appointing authority as well as the disciplinary authority. Therefore, the impugned order is within the jurisdiction and instead of preferring appeal within time frame, after lapse of the period of appeal, the petitioner has moved this Court challenging the said order of minor punishment. 6. I have given careful consideration to the submissions made by the learned counsel for the parties and perused the records. 7. A circumspection of facts, reveals that the petitioner was working as Tahsildar in Kancheepuram Revenue Unit from 2004 and his services were lent to the CMDA as a Land Acquisition Officer for Maraimalai Nagar Scheme from 30.9.2005 to 16.2.2007 on foreign service. It is seen that initially, the office of the Special Tahsildar (Land Acquisition), Maraimalai Nagar Scheme was created during 1973 with ten units and subsequently, it reduced gradually on account of the completion of work at certain stages and has now been functioning with one unit and from 2004, the unit is functioning with one Special Tahsildar, one Assistant, one Typist and one Surveyor. The petitioner was working as Special Tahsildar during that period. When certain irregularities were found, a show cause notice was issued on 27.10.2006, to which, the petitioner submitted his explanation without questioning the jurisdiction of the authority. The Collector, after following the procedures contemplated, framed three charges under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, vide proceedings dated 27.10.2006, for which, the petitioner submitted his explanation without questioning the jurisdiction of the authority. After following the procedures contemplated, the first respondent-District Collector held that the charges framed against the petitioner, were proved and issued the order of punishment of censure against the petitioner, against which, the petitioner has not preferred any appeal. 8. The first charge in 1(a) appears that certain details were called for by the Collector of Kancheepuram and they were not furnished in respect of the disbursement of the award amount. The next charge in 1(b) is in respect of the details of the award amount granted and to initiate action under Section 47 of the Land Acquisition Act and to send final check memo report, which was not furnished. The next charge in 1(c) is in respect of the check memo, report was called for in respect of Chitamanur Village, which was not furnished. The second charge is in respect of diary not received for the period from February 2006 to September 2006 and hence, the periodical register could not be maintained properly and files could not be disposed of. The third charge is in respect of the allotment of work to Surveyors in respect of pending check memo files. 9. For all the charges, the first respondent, after considering the explanation of the petitioner, has come to the conclusion that the charges were proved. The explanation of the petitioner is that in https://hcservices.ecourts.gov.in/hcservices/ view of the reason that the letter, during the relevant period of time, was received by the petitioner's predecessor and due to winding up of Maraimalai Nagar Scheme and now functioning with minimum skeletal staff of one unit only, the file pertaining to the period 1989, was not traceable immediately. This fact was informed by the petitioner's predecessor on 29.4.2005 and 19.5.2005. After taking charge by the petitioner, sincere steps were taken by him to trace out the file and the same could not be located and the fact was informed by the petitioner on 5.10.2005, 14.11.2005 and 10.1.2006. In respect of land acquisition matters, parallel records are available in the Collector's office itself and therefore, they could have taken suitable action based on the records available with them instead of calling for the details from the petitioner. Hence, it is the contention of the petitioner that the charge in 1(a) is not maintainable. 10. With regard to the next charge in 1(b), in view of the reason that action under Section 47 of the Land Acquisition Act, is to be initiated only by Chengalpet Taluk Tahsildar, and therefore, Chengalpet Taluk Tahsildar was requested by the Special Tahsildar, Maraimalai Nagar Scheme in Letter No.142/2002, dated 15.2.2005 and his report is awaited and only on receipt of his report, final report could be sent to the Collector, and therefore, it is the contention of the petitioner that charge in 1(b) is levelled against the petitioner with motive and malice. 11. As regards charge in 1(c), it is the contention of the petitioner that the final check memo report was submitted to the Collector on 26.9.1988 and therefore, without properly verifying the records, the charge is levelled against the petitioner. 12. As regards charge No.2, the petitioner gave details of the dates on which the diaries were handed over to the Collector. As regards charge No.3, it is stated by the petitioner that the Surveyors were provided with the files and they could not do the clerical work. 13. It is seen that the explanation was sought for from the petitioner's predecessor and this explanation has not been taken into account by the first respondent, who held that the charges were proved. 14. It is to be examined as to whether the order of punishment of censure imposed upon the petitioner, is legally infirmed or not. 15. Learned Senior Counsel appearing for the petitioner contended that the first respondent, while recording the disciplinary proceedings, observed as follows in the impugned order of punishment: @nkw;go tptuj;jpid rhh; Ma;thsh; jpU/Kusp/. jpU/Rg;gpukzpad; https://hcservices.ecourts.gov.in/hcservices/ Mfpnahh; 18/10/2006y; kD K:yk; bjhptpj;Js;sdh;/ Mfnt. jdpahpd; tpsf;f';fs; Vw;Wf;bfhs;sj;jf;fjhf ,y;iy/ midj;J Fw;wr;rhl;LfSk; epU:gzkhfpa[s;sJ/ vdnt. jdpaUf;F @fz;ldk;@ (Censure) tH';fp cj;jutplg;gLfpwJ/@ the translation of which, is as follows: "The above details have been mentioned by Sub- Inspector Thiru.Murali, Thiru.Subramanian on 18.10.2006 in their petition. Hence, the delinquent's explanation is not acceptable. All the charges have been proved. Therefore, the 'censure' is imposed on the delinquent." Therefore, learned Senior Counsel appearing for the petitioner submitted that without assigning any reason, the impugned order of punishment has been passed and it is totally non-speaking order and the same cannot be sustained. 16. Learned Senior Counsel appearing for the petitioner relied on the decision reported in 2009 (4) SCC 240 (Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney), wherein, the Supreme Court held as follows: "6. The view we are taking was also taken by this Court in Divl. Forest Officer v. Madhusudhan Rao (2008 (3) SCC 469 : 2008 (1) SCC (L & S) 788 : JT (2008) 2 SC 253 (vide SCC para 20 : JT para 19), and in M.P.Industries Ltd. v. Union of India (AIR 1966 SC 671), Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India (1976 (2) SCC 981 : AIR 1976 SC 1785) (vide SCC para 6 : AIR para 6), etc. 7. In the present case, since the appellate authority's order does not contain any reasons, it does not show any application of mind. 8. The