IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.02.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.Nos.6733 and 7064 of 2007 M.P.Nos.1 and 1 of 2007 G.Manimekalai ... Petitioner in both W.Ps vs. 1. The Revenue Divisional Officer, Dharmapuri District, Dharmapuri. 2. The District Revenue Officer, Dharmapuri District, Dharmapuri. 3. The District Collector, Dharmapuri District. ... Respondents in both Wps. 4. V.Panner Selvam ... 4th Respondent in (R4 impleaded as per order W.P.No.6733 of 2007 dated 12.02.2008 in WPMP.No.1 of 2008 in W.P.No.6733 of 2007) Prayer in W.P.No.6733 of 2007: Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the proceedings of the third respondent in R.O.C.No.57301/2006(A2), dated 14.02.2007, quash the same and consequently direct the third respondent to include the name of the petitioner in temporary panel for Deputy Tahsildar for the year 2006. Prayer in W.P.No.7064 of 2007 Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, to call for the records pertaining to the proceedings of the second respondent in Na.Ka.No.41042/2003/A3, dated 12.02.2007 and quash the same. For Petitioner : Mr.U.M.Ravichandran For Respondents : Mr.A.Arumugam Addl. Govt. Pleader O R D E R The petitioner is working as a Selection Grade Assistant in the Revenue Divisional Office at Dhamrpuri District. Pursuant to a disciplinary action initiated in the year 2002, the District Revenue Officer, Dharmapuri, by order dated 12.02.2007, inflicted a penalty of stoppage of increment for a period of three months without cumulative effect. As a consequence thereof, the petitioner's name has been omitted to be included in the panel of Deputy Tahsildars for the year 2006 on the grounds that the petitioner was suffering a current punishment. Aggrieved by the punishment of stoppage of increment the petitioner has filed W.P.No.6733 of 2007 for a Writ of Certiorarified Mandamus to call for the records pertaining to the proceedings of the third respondent in R.O.C.No.57301/2006(A2), dated 14.02.2007, quash the same and consequently direct the third respondent to include the name of the petitioner in temporary panel for Deputy Tahsildar for the year 2006. 2. As the petitioner's juniors have been included in the temporary panel ignoring her legitimate claim for promotion, the petitioner has filed W.P.No.7064 of 2007 to quash the temporary panel dated 14.02.2007 drawn by the third respondent and consequently direct the third respondent to include the name of the petitioner in the temporary panel for the post of the Deputy Tahsildar for the year 2006 and for further orders. 3. As both the Writ Petitions involve common questions of fact and law, they are taken up together and disposed of by a common order. 4. Brief facts leading to W.P.No.7064 of 2007 are as follows: The petitioner joined the Government Service in clerical cadre as Typist in 1982, pursuant to in a selection conducted by the Tamil Nadu Public Service Commission She was promoted as Assistant and posted at Revenue Divisional Office, Dharmapuri and she joined duty on 13.06.1996 and thereafter, she was promoted as Revenue Inspector on 08.05.1998. She joined duty on 13.05.1998. The post of the Revenue Inspector is the feeder category post for Deputy Tahsildar. By virtue of her seniority and since the petitioner has been working in the Selection Grade Post of Assistant for a considerable time, she is eligible to be included in the panel for the post of Deputy Tahsildar for the year 2006. 5. While the petitioner was working as a Revenue Inspector Nallampalli, Dharmapuri District, she was served with a charge memo dated 21.02.2000 under Rule 17-A of the the Tamil Nadu Civil Service (Discipline and Appeal) Rules, calling upon her to submit an explanation to the above said charge memo. The petitioner submitted her explanation to the District Revenue Officer, Dharmapuri as early as on 10.04.2004 and denied the allegations. In her explanation, she submitted that the Village Administrative Officer, Nallampalli, had verified the details in the concerned village and submitted a declaration that the applicant, Miss.Akila Mary, was residing with her parents in the village for 1= years and that therefore, recommended for issuance of Nativity Certificate. The petitioner has also verified the details along with the Village Administrative Officer. Though the application of the said Akila mary was for issuance of Nativity Certificate and the Village Administrative Officer, Nallampalli Village, had recommend for the issuance of the said Certificate, the petitioner refused to counter sign for the issuance of the Nativity Certificate, but counter signed and forwarded the application only for Residence Certificate. The second respondent after receiving his explanation, did not pass orders for a long time and therefore, the petitioner was under a bona fide impression that the District Revenue Officer, Dharmapuri had dropped the proceedings. 6. The petitioner has further submitted that the District Revenue Officer, Dharmapuri, the second respondent herein, with an ulterior motive of denying the chances of promotion to the post of Deputy Tahsildar, just two days before the panel for the post of Deputy Tahsildar, has passed an order dated 12.02.2007, imposing a penalty of stoppage of increment for three months without cumulative effect. As the second respondent has issued the panel and promoted many of her juniors hurriedly, without giving adequate opportunity to make her representation or file any appeal against the non-inclusion of her name, the petitioner was constrained to challenge the penalty by way of a Writ Petition, without availing the alternative remedy. 7. In W.P.No.6733 of 2007, the petitioner has contended that she has an unblemished record of service, right from the date of induction into Government Service except the penalty of stoppage of increment for a period of three months without cumulative effect. The petitioner has further contended that a disciplinary action was initiated under Rule 17-A on 21.01.2002. 8. The petitioner has submitted that her explanation as early as on 10.04.2002, denying the charges and further submitted that the application of said Ms.Akila Mary was forwarded with his counter signature to the Tahsildar only for issuance for Residence Certificate and not for Nativity Certificate. The details of her explanations have already been extracted. 9. The petitioner has further submitted that after receiving the explanation dated 10.04.2002 no action was taken by the respondents and therefore, the petitioner was under a bona fide impression that the matter was given a quietus and that the disciplinary action was dropped. Suddenly, after a lapse of 5 years, just 2 days before the panel for the post of Deputy Tahsilar, 2006, with an ulterior motive of denying the promotional opportunity to the petitioner, the second respondent has passed an order dated 12.02.2007, inflicting a penalty of stoppage of increment for a period of three months without cumulative effect. 10. It is the further contention of the petitioner that surprisingly no action was taken either against the Tahsildar who had issued the Residence Certificate or the Village Administrative Officer, Nallampalli, who had recommended for issuance of Nativity Certificate. The petitioner has further submitted that the disciplinary authority has failed to consider that the petitioner has not committed any delinquency but has merely forwarded the recommendations of the Village Administrative Officer, Nallampalli, dated 20.07.1998, who had declared that he had conducted a personal enquiry on the application submitted and that he knew her family. 11. The petitioner has further submitted that as the District Revenue Officer, Dharmapuri has failed to appreciate the facts and circumstance, under which, the petitioner had forwarded the application and since the petitioner's juniors have been included in the panel dated 14.02.2007, which was hurriedly implemented, the petitioner has challenged the same in this Writ Petition. The petitioner has further submitted that the crucial date for consideration of the names for inclusion in the panel for Deputy Tahsildars for the year 2006 is 15.09.2006 and on that date, there was no impediment for inclusion in the panel. 12. The District Collector, Dharmapuri District, third respondent in his counter affidavit has submitted that when the petitioner was working as Revenue Inspector, Nallampalli during the period 13.05.1998 to 24.05.2002, he issued a Residence Certificate to an ineligible person. Therefore, the District Revenue Officer, Dharmapuri, in his proceedings in Roc.65156/2000/F1, dated 21.01.2002 has framed charges under rule 17(a) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, calling upon the petitioner to offer her explanation for having recommended for the grant of Residence Certificate to an ineligible person. Though the charges were refuted by the petitioner in her explanation dated 10.04.2002, she admitted that she recommended for issue of residential certificate which is irregular, when the certificate holder was not actually residing in the said address. The charges framed against the petitioner and the explanation offered by her were under process since action was also initiated against the Tahsildar and the Village Administrative Officer, who were responsible for grant of such certificate. The third respondent has further submitted that only after due consideration of the explanation of the petitioner and based on the enquiry report, the punishment of stoppage of increment was awarded against the petitioner. 13. The third respondent has further submitted that the drawal of panel for the post of the Deputy Tahsildar and the disciplinary proceedings initiated against the petitioner are not interlinked. However, while considering the name of the petitioner for inclusion in the panel of Deputy Tahsildars for the year 2006, the effect of the above punishment was taken into consideration by the third respondent, as per the instructions of the Government in their letter in Lr.No.Ms.No.67652/S/2002-6, Personal and Administrative Department, dated 27.08.2003, which states that any punishments awarded after the crucial date and till the date of issue of the panel should be taken into consideration for assessing the suitability of the officer for inclusion in the panel. According to the third respondent, the crucial date for drawal of panel of Deputy Tahsildar for the year 2006, was 15.09.2006 and therefore, as per the Government Letter dated 27.08.2003, punishment which was imposed against the petitioner on 12.02.2007 after the crucial date was taken into consideration for assessing the suitability of the officer and therefore, the petitioner was not included in the panel for the above said post. 14. The third respondent has further submitted that the recommendations of the Revenue Divisional Officer, the first respondent alone is not sufficient for inclusion in the panel. The first respondent was not aware of the pendency of the disciplinary proceedings during November 2006, as he would have been misguided by the subordinate staff. The third respondent has further submitted that there is no provision in the Tamil Nadu Civil Service (Discipline and Appeal) Rules for conducting personal enquiry in the case of Rule 17(a) Charges. Inasmuch as the petitioner has given an opportunity to submit her explanation, there is compliance of the provisions of Rule 17(a) of the said Rules and therefore, there is no violation of the principles of natural justice. As against the punishment of stoppage of increment, the third respondent has finally submitted that the petitioner has rushed to this Court without availing an alternative remedy of filing an appeal. For all the reasons, the respondents prayed for dismissal of the Writ Petition. 15. Mr.V.Panneer Selvam, who has been included in the temporary panel of Deputy Tahsildars for the year 2006, dated 14.02.2007 at Sl.No.20, has filed an application to implead himself as the fourth respondent in this Writ Petition. In his application, he has stated that the temporary panel which is impugned in this Writ Petition is valid only for one year ending on 13.02.2008. Therefore, he has prayed for urgent orders to implead himself in this Writ Petition. The said application was not opposed either by the petitioner or by the official respondents. Hence he was permitted to be impleaded by order of this Court, dated 12.02.2008. 16. Mr.U.M.Ravichandran, learned counsel for the petitioner submitted that the second respondent has failed to conduct an enquiry into the charges and therefore, the impugned order of penalty dated 12.02.2007, is in violation of Principles of Natural Justice. He further submitted that the second respondent has failed to consider that the Village Administrative Officer, Nallapalli, who had conducted a personal enquiry in the said Village, has submitted a report stating that the applicant was residing in the Village with her parents for 1 = years and only after ascertaining the said fact, he has recommended for issuance of a Nativity Certificate. He has further submitted that on the basis of the report of the Village Administrative Officer, Nallampalli, the petitioner has forwarded the application with his counter signature for issue of Residence Certificate and that the recommendation was not intended to facilitate the applicant, Ms.Akila Mary, to gain employment on priority basis. 17. Learned counsel for the petitioner further submitted that though the said Village Administrative Officer, Nallampalli had recommended for grant of Nativity Certificate, taking into consideration of the fact that the applicant did not possess a Ration Card to prove her nativity, the petitioner did not counter sign the application for grant of Nativity Certificate, but forwarded the application for issuance of only residential certificate, which would prove that the petitioner has exercised her duty diligently and not committed any misconduct. 18. Referring to the impugned order of penalty, the learned counsel for the petitioner further submitted that the District Revenue officer, Dharmapuri in his order has categorically stated that the applicant was residing in the Village with her sister and therefore, the fact that she was residing in that place was proved, but the petitioner would not have known the reasons of her stay in the village. He also submitted that the finding of the second respondent that the petitioner has issued the Residence Certificate is erroneous and perverse, as the petitioner is not the competent authority to issue said certificate. 19. Learned counsel for the petitioner further submitted that the Disciplinary Authority has failed to consider the explanation offered by the petitioner in a proper perspective and that no reasons have been assigned in the impugned order excepting to state that the Residence Certificate issued to the applicant was subsequently cancelled by the District Collector, Dharmapuri and therefore, it is proved that the applicant did not reside in Nallampalli Village. 20. Learned counsel for the petitioner further submitted that no action was taken against the Tahisldar, who issued the residential certificate or the Village Administrative Officer, who had recommended for issuance of Nativity Certificate and thus, the respondents have applied different yardsticks in the case of the petitioner, discriminated her, violating Article 14 of the Constitution of India. 21. Learned counsel for the petitioner further submitted that during the preparation of the panel, the Revenue Divisional Officer, Dharmapuri, while forwarding the details of the petitioner for inclusion in the panel of Deputy Tahsildars, by his letter dated 25.07.2006, has categorically stated that no charges were pending against the petitioner and that she was not inflicted with any penalty. Therefore, he submitted that when the Revenue Divisional Officer, Dyharmarpurai, has recommended for inclusion of the petitioner in the name of the panel for the promotion post, the second respondent ought not to have imposed a penalty of stoppage of increment just 2 days before the impugned panel dated 14.02.2007. At this juncture, learned counsel for the petitioner submitted that the action of the second respondent imposing the penalty is only to prevent the petitioner, from inclusion in the panel and therefore, it is mala fide. 22. Mr.A.Arumugam, learned Additional Government Pleader reiterating the contentions made in the counter affidavit, submitted that for the charges dated 21.02.2002, levelled against the petitioner, a show cause notice, dated 01.04.20010 was issued, for which, the petitioner submitted her explanation on 10.04.2002. He further submitted that the crucial date for consideration of eligibility for inclusion in the panel for promotion to the post of Deputy Tahsildar is 15.09.2006 and on that date, the petitioner was facing a disciplinary action under Rule 17-A of the the Tamil Nadu Civil Service (Discipline and Appeal) Rules,. Referring to the impugned order of penalty, he further submitted that as the Residence Certificate ssued in favour of Ms.S.Akila Mary, D/o. Sathyasilan was found to be erroneous and cancelled by the District Collector, Dharmapuri on 24.08.2000, the charges levelled against the petitioner are proved and therefore, the respondent has rightly awarded a punishment of stoppage of increment for three months for the irregularity committed by the petitioner. 23. Learned counsel for the respondents further submitted that as the petitioner was undergoing a penalty of stoppage of increment from 12.02.2007, she is not entitled for inclusion in the panel of Deputy Tahsildars for the year 2006. He further submitted that the Writ Petitions seeking to quash the penalty and the panel are not maintainable, as the petitioner has failed to avail the alternative remedy of filing an appeal to the Special Commissioner and Commissioner for Revenue Administration. 24. Referring to Rule 17-A of the the Tamil Nadu Civil Service (Discipline and Appeal) Rules,, learned counsel for the respondents submitted that the procedure to be followed in respect of charges framed the said Rule is only summary in nature and examination of witnesses is not required. Therefore, he submitted that there is no violation of the principles of natural justice. Heard the counsel appearing for both parties and perused the materials available on record. 25. Pleadings disclose that an application for issuance of a Nativity Certificate was made by one Mrs.Akila Mary, D/o. Sathyasilan. The residence certificate issued by the Tahsildar was subsequently cancelled by the District Collector, Dharmapurai District on 24.08.2000. The appeal preferred against the cancellation of the certificate was confirmed on 07.04.2002 by the Revenue Divisional Officer, Dharmapuri. Consequently, for the irregularities of counter signing and forwarding the application to the Tahsildar, disciplinary action has been taken against the petitioner for the charges, (1) The petitioner, without conducting a proper enquiry has recommended for issuance of residence certificate to an outsider as if the applicant belong to Dharmapuri District, and (2) thereby facilitated the applicant to change the registration in the Employment Exchange, Dharmapuri District causing hindrance to the those who have completed the Teacher Training from Dharmapuri District to secure employment on priority basis. 26. The particulars furnished by the applicant in the application were verified by the Village Administrative Officer Nallampalli and he has given a declaration on 20.07.1998 to the petitioner, Revenue Inspector of the concerned Village. In his report, the Village Administrative Officer has stated that he had conducted a personal enquiry into the matter and declared that the applicant has been residing in the said village for 1 = years and that he knew her family very well. She has no family card. Therefore, he has stated that the application for issuance of the Nativity Certificate may be counter signed. The petitioner in her explanation dated 10.04.2002, has stated that on the basis of the declaration submitted by Village Administrative Officer Nallampalli, he had visited the village along with the Village Administrative Officer and found that the applicant was residing in the said village. She has further stated in her explanation that since the application related to issuance of Nativity Certificate, she had directed the applicant to produce the Ration Card. As the applicant failed to produce proof of Nativity, the petitioner on the basis of the declaration given by Village Administrative Officer Nallampalli, and personal enqiry conducted by him, forwarded the application with her counter signature, for issuance of residence certificate. The petitioner in her explanation also submitted that she had been discharging her duties diligently without any blemish for 22 years and that there is no motive in her action. In the impugned order of stoppage of increment, reference is made to a report of the Revenue Divisional Officer, Dharmapuri, that the applicant Miss.Akila Mary, was staying in her sister's house in Nallampalli Village for the purpose of securing employment. Though Rule 17-A of the Rules, does not contemplate a regular departmental enquiry of examination of witnesses, principles of natural justice require that the materials relied on by the Disciplinary Authority should be furnished to the delinquent so as to enable him/her to put forth his/her defence effectively. The fact that the applicant was residing in the said village is confirmed by the Revenue Divisional Officer, Dharmapuri. There are no incriminating materials referred to in the impugned order of stoppage of increment to substantiate that the petitioner has intentionally forwarded the application to facilitate the applicant to effect changes in the Registration of Employment particulars in the District Employment Exchange. Further, the District Revenue Officer, Dharmapuri has also erroneously observed in the impugned order that the petitioner has issued the Residence Certificate to the applicant which is factually incorrect, as the petitioner is not competent to do. 27. For the alleged irregularities said to have occurred in the year 1998, charges have been framed on 21.02.2002, for which, the petitioner has offered her explanation on 11.04.2002. The proceedings of the Revenue Divisional Officer dated 07.04.2002, confirming the cancellation of the Residence Certificate, has been relied on for the purpose of inflicting the penalty. Though the charges were issued as early as on 21.02.2000, the respondents without furnishing a copy of the subsequent proceedings dated 07.04.2002 and without giving an adequate opportunity to put forth her defence against the finding arrived at by the Revenue Divisional Officer, has found that the petitioner has committed the irregularity. It is rudimentary that the copies of the materials relied on by the disciplinary authority should be furnished to the delinquent to offer her explanation, even if the proceedings are summary in nature. In the absence of the above, I am of the view that the petitioner has been greatly prejudiced and that there is a violation of principles of natural justice. The Disciplinary Authority has also not discussed the explanation of the petitioner in the proper perspective and that no reasons have been assigned for rejecting the same. 28. In State of A.P. v. N.Radhakrishnan reported in 1998 (4) SCC 154, the Supreme Court considered a case, where there was considerable delay in conclusion of the disciplinary proceedings, though there were adequate materials to proceed against the officers. Considering the prejudice caused to the employee due to the delay and the balance to be maintained between purity of administration and the adverse effect of prolonged proceedings, the Supreme Court quashed the disciplinary proceedings. At Paragraph 19, the Supreme Court held as follows: "19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to