IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 03.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA WP.Nos.26883 & 26884/2008 & MP.Nos.1 & 1/2008 R.Manickam .. Petitioner in WP.26883/2008 M.Madhu .. Petitioner in WP.26884/2008 Vs 1.The Principal Secretary to Government Environment & Forest Department Fort St.George, Chennai-9. 2.The Principal Chief Conservator of Forest Panagal Building, Saidapet, Chennai-15. ..Respondents in both the WPs Writ petitions filed under Article 226 of the Constitution of India praying for a writ of certiorari calling for the records in pursuant to the impugned notice issued by the 1st respondent in letter Nos.13177/V9A/03-13 and 13177/V9A/03-14 dated 13.10.08 and quash the same. For Petitioners: Mr.S.M.Subramaniam For RR 1 & 2 : Mr.S.N.Kirubanandham, Special Government Pleader [Forests] COMMON ORDER By mutual consent of both sides, the main writ petitions are taken up for final disposal. 2.The petitioners in both the writ petitions are challenging one and the same impugned notice dated 13.10.2008 as both of them are co-delinquents and they have come forward with the above petitions seeking for the relief of quashing the said impugned notices dated 13.10.2008 in letter Nos.13177/V9A/03-13 and 13177/V9A/03-14. 3.The case of the petitioners is that both the petitioners are working as Foresters in Harur range, Dharmapuri District. While they were working as Forest Watchers earlier, on certain https://hcservices.ecourts.gov.in/hcservices/ alleged irregularities, a charge sheet was issued against the petitioners by the Tribunal for disciplinary proceedings on 11.07.1995 and the Tribunal conducted a detailed enquiry in TDP case No.17/2000 and held that charges 1 and 4 are proved. Based on the enquiry report, the petitioners submitted their explanations and a final order in the Disciplinary Proceedings was passed by the 2nd respondent in his proceedings dated 17.12.2002 imposing a punishment of "CENSURE". 4.After a lapse of about 6 years, now the 1st respondent issued the impugned notice in his proceedings dated 13.10.2008 stating that the punishment already imposed in proceedings dated 17.12.2002 is not sufficient and further stated that it is proposed to impose the punishment of reversion of 4 years and 5 years respectively. Being aggrieved against the said impugned notice dated 13.10.2008, the petitioners have come forward with the above writ petitions seeking for the above said relief. 5.Mr.S.M.Subramaniam, learned counsel for the petitioners would submit the following two-fold contentions, viz., firstly, the impugned notice is liable to be quashed on the ground that the proposed imposition of punishment of reversion of 4 years and 5 years respectively is a pre-meditated one and secondly, the Disciplinary Proceedings were completed by imposing a punishment of censure as early as on 17.12.2002 in respect of the alleged incidents said to have taken place in the year 1988- 1989 and whereas the impugned show cause notice is now issued only on 13.10.2008 after a lapse of six years and as such, the suo-moto proceedings are not initiated within the reasonable time. 6.The learned counsel for the petitioners, in support of his contentions, placed reliance on the following decisions:- [1] 2007 [1] CTC 844 [SIEMENS LIMITED Vs. STATE OF MAHARASHTRA AND OTHERS]; [2] [2009] 1 MLJ 1049 [N.BOSE Vs. STATE OF TAMIL NADU REP.BY IT SECRETARY TO GOVT., EDUCATION DEPARTMENT, CHENNAI AND ANOTHER]; and [3] [2010] 1 MLJ 869 [K.JAYAKUMAR Vs. REGISTRAR OF COOPERATIVE SOCIETIES, KILPAUK, CHENNAI-10 AND OTHERS]. 7.Mr.S.N..Kirubanandam, learned Special Government Pleader [Forests] would contend that there is no infirmity or illegality in issuing the impugned show cause notice. It is contended that it is open to the petitioners to raise their objections by giving suitable reply by participating in the proceedings. It https://hcservices.ecourts.gov.in/hcservices/ is further submitted that the first respondent having felt that the punishment already imposed was not a sufficient one and proportionate to the charges framed against the petitioners, decided to issue the present impugned show cause notice dated 13.10.2008. It is further contended that there is nothing wrong in informing the petitioners about the proposed punishment and on that ground itself, it cannot be contended that the first respondent is having premeditated action in his mind while issuing the impugned show cause notice. Therefore, it is contended by the learned Special Government Pleader [Forests] that the writ petitions are liable to be dismissed 8.I have carefully considered the rival submissions made on either side and also perused the entire materials available on record including the impugned notice dated 13.10.2008. 9.The undisputed fact remains that the petitioners have been proceeded by conducting the Disciplinary Proceedings in respect of the alleged incidents said to have taken as early as in the year 1988-1989 and the Disciplinary Proceedings were completed as early as on 17.12.2002 by imposing the punishment of censure on both the petitioners. It is seen that after the lapse of six years, the 1st respondent has issued the impugned notice in his proceedings dated 13.10.2008. 10.The learned counsel for the petitioners raised two-fold submissions in these matters:- 1.The first submission is to the effect that the impugned notice contains the proposal for imposing punishment of reversion of 4 years and 5 years respectively and as such the action is a premeditated one; 2.The second submission is to the effect that the impugned notice has been issued after a lapse of six years and as such, the impugned notice was not issued within the reasonable time and the same is contravention to Rule 36 of the Tamil Nadu Civil Services [Discipline and Appeal] Rules. 11.As far as the first submission is concerned, the learned counsel for the petitioners has rightly placed reliance on the decision of the Hon'ble Apex court reported in 2007 [1] CTC 844 [SIEMENS LIMITED Vs. STATE OF MAHARASHTRA AND OTHERS]; wherein the Hon'ble Apex court has held in paragraph 10 that:- "10.Although ordinarily a writ court may https://hcservices.ecourts.gov.in/hcservices/ not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this court in some decisions including State of Utar Pradesh V. Brahm Datt Shama and Anr., AIR 1987 SC 943, Special Director and Another V.s Mohd. Ghulam Ghouse and Another, 2004 [3] SCC 440 and Union of India and Another V. Kunisetty Satyanarayana, 2006 [12] SCALE 262, but the question herein has to be considered from a different angle, viz., when a notice is issued with pre-meditation, a Writ petition would be maintainable. In such an event, even if the Courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. See K.I.Shephard and others Vs. Union of India and others, 1987 [4] SCC 431 : AIR 1988 SC 686. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause." 12.This court is of the considered view that the principle laid down in the decision cited supra by the Hon'ble Apex court is squarely applicable to the facts of the instant case as in this case also, the perusal of the impugned notice makes it crystal clear that it contains the statement of the proposal of imposing the punishment of reversion of 4 years and 5 years respectively and as such, this court has no hesitation to hold that the impugned notice is issued with premeditation to impose an enhanced punishment. Therefore, on this ground alone the impugned notice is liable to be quashed. 13.Let me now consider the 2nd submission, viz., the impugned notice is issued after the lapse of six years by initiating suo moto proceedings and as such, the impugned notice was not issued within the reasonable time. It is pertinent to note that the petitioners have been proceeded with the Disciplinary Proceedings in respect of the alleged incidents said to have taken place as early as in the year 1988-1989 and the said proceedings were completed as early as on 17.12.002 by imposing the punishment of censure on the petitioners and whereas the impugned notice by initiating the suo moto proceedings was issued only on 13.10.2008, i.e., after the lapse of six years. At the outset it is to be stated that there is absolutely no explanation whatsoever forthcoming for such inordinate delay in issuing the impugned notice. At this https://hcservices.ecourts.gov.in/hcservices/ juncture, it is relevant to refer the provision under 36 of the TNCS [D&A] Rules regarding the power to review the order of punishment suo moto, which reads here under:- "REVISION OF ORDERS BY THE APPELLATE AUTHORITIES AND THE HIGHER AUTHORITIES: [1]Notwithstanding anything contained in these rules:- [i]the State Government; or [ii]the head of the department directly under the State Government, in the case of a Government servant serving in a department or office under the control of such head of the department, or departments; or [iii]the appellate authority, other than the State Government, within six months of the date of the order proposed to be revised; or [iv]Any other authority specified in this behalf by the State Government by a general or special order, and within such time as may be prescribed in such general or special order- may at any time, either on their or its own motion or otherwise call of the records of any inquiry and after consultation with the Tamilnadu Public Service Commission, where such consultation is necessary, revise any order made under these rules, and may- [a]Confirm, modify or set aside the order; or [b]Confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed by the order, or impose any penalty where no penalty has been imposed; or https://hcservices.ecourts.gov.in/hcservices/ [c]Remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or [d]Pass such other orders as they or it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making his representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses [iv],[v][c],[vi], [vii] and [viii] of Rule 8 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under sub-rule [b] of Rule 17 has not already been held in case no such penalty shall be imposed except after an inquiry under sub rule [b] of Rule 17 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in the said sub rule [b] which shall be subject to the provisions of sub rule [c] thereof, and except after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary." 14.A reading of the above provision discloses that the Suo moto proceedings may be initiated at any time. But that does not mean that the authorities concerned can initiate suo moto action as per their whims and fancies after the lapse of inordinate delay. 15.A similar provision regarding the suo moto power was considered by the Hon'ble Apex court in the decision State of H.P. V. Rajkumar Brijender Sigh AIR 2004 SC 3218 : [2004] 10 SCC 585, wherein in paragraph 6, the Supreme Court considered a similar issue of suo moto revision exercised by the Government after 15 years, paragraph 6 of the Judgment reads as follow:- https://hcservices.ecourts.gov.in/hcservices/ "6.We are now left with the second question which was raised by the respondents before the High Court, viz., the delayed exercise of the power under sub-section [3] of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that sub-section [3] provided that such a power may be exercised at any time but this expression does not mean there would be no time limit or it is infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo moto action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo moto power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and circumstances by reason of which it could be said that exercise of suo moto power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo moto. In a suitable case een tough an appeal preferred before the lower appellate authority is withdrawn, may be, by the State. Thus, the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such, delayed action on his part nullifies the order passed by him in exercise of https://hcservices.ecourts.gov.in/hcservices/ power under sub-section [3] of section 20." 16.In the decision in Ibrahimpatnam Taluk Vyavasaya Coolie Sangam V. K.Suresh Reddy AIR 2003 SC 3592 : [2003] 7 SCC 667 also similar provision was considered by the Hon'ble Apex court with regard to the power of Suo Moto review. In paragraphs 12 and 13, it has been held as follows:- "12.the learned Single Judge has referred to and relied on various decisions including the decisions of this court as to how the use of the words "at any time" in sub-section [4] of section 50-B of the Act should be understood. In the impugned order the Division Bench of the High Court approves and affirms the decision of the learned Single Judge. Where a statute provides and affirms the decision of the learned Single Judge. Where a statute provides any suo moto power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is "reasonable time" has to be determined on the facts of each case. 13.In the light of what is stated above, we are of the view that the Division Bench of the High Court was right in affirming the view of the learned Single Judge of the High Court that the suo moto power under sub-section [4] of Section 50-B of the Act is to be exercised within a reasonable time." 17.The above decisions rendered by the Hon'ble Apex court makes it crystal clear that the suo moto power should be exercised within a reasonable period and what is the reasonable period, depends upon each and every case. As far as the case in hand is concerned, there is absolutely no justification to initiate suo moto action after the lapse of six years and no explanation is given for such inordinate delay. 18.A learned Single Judge of this court also taken a similar view by following the above said decisions of the Hon'ble Apex court in [2009] 1 MLJ 1049 [N.BOSE Vs. STATE OF TAMIL NADU REP.BY IT SECRETARY TO GOVT., EDUCATION DEPARTMENT, CHENNAI AND ANOTHER] and [2010] 1 MLJ 869 [K.JAYAKUMAR Vs. REGISTRAR OF COOPERATIVE SOCIETIES, KILPAUK, CHENNAI-10 AND OTHERS]. https://hcservices.ecourts.gov.in/hcservices/ 19.The principle laid down by the Hon'ble Apex court as well as the decisions of this court cited supra, squarely applicable to the facts of the instant case as in this case also the suo moto proceedings was not initiated within a reasonable time and there is an inordinate and unexplained delay of six years for issuing the impugned notice dated 13.10.2008 and as such, this court is of the considered view that the impugned notice dated 13.10.2008 is liable to be quashed. 20.Accordingly, the writ petitions are allowed and the impugned notice dated 13.10.2008 passed by the 1st respondent in his letter Nos. 13177/V9A/03-13 and 13177/V9A/03-14 are quashed. No costs. Consequently connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1.The Principal Secretary to Government Environment & Forest Department Fort St.George, Chennai-9. 2.The Principal Chief Conservator of Forest Panagal Building, Saidapet, Chennai-15. +2cc to M/s.S.M.Subramaniam, Advocate Sr14550 +1cc to Special Govt. Pleader (Forests) Sr 14526 RSM(CO) km/10.3. WP.Nos.26883 & 26884/2008 https://hcservices.ecourts.gov.in/hcservices/