IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.11.2008 CORAM: THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE V.DHANAPALAN WRIT APPEAL No.994 OF 2008 1. The Secretary to Government Revenue Department, Fort St.George, Chennai-9 2. The Special Commissioner & Commissioner of Revenue Administration, Chepauk, Chennai-5 3. The District Collector, Collector Office, Tirunelveli. 4. The District Revenue Officer, Collector Office, Tirunelveli. ... Appellants Vs. S.Ponnaiah ... Respondent Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge of this court dated 7.8.2008 made in W.P.No.5266 of 2008. Petition filed under Article 226 of constitution of India praying to issue a Writ or direction in the nature of Writ of Certorarified Mandamus by calling for the records of the 1st Respondent dated 23.8.2007 in G.O.2D No.504, Revenue Department by calling for the records of the 2nd Respondent dated 28.7.2004 proceedings No.Na.Ka.4(4)/33152/04 calling for the records of t he 4th respondent proceedings No.Na.Ka.A5/116904/03 dated 18.2.04 and quash the same and consequently direct the 3rd Respondent to promote the petitioner to the post of Deputy Tahsildar under Deputy Tahsildar Panel of 2007. For Appellants : Mr.S.Rajasekar, Additional Govt.,Pleader For Respondent : Mr.S.Gomathinayagam J U D G M E N T V.DHANAPALAN,J. The State, through the Secretary to Government, Revenue Department and others have preferred this appeal against the order https://hcservices.ecourts.gov.in/hcservices/ of the learned Single Judge dated 7.8.2008, passed in W.P.No:5266 of 2008, in and by which, the Writ Petition was allowed by quashing the punishment imposed on the respondent (writ petitioner) and directing the third appellant herein to pass orders granting promotion to the respondent (writ petitioner) from the date of promotion of his junior. 2. For the sake of convenience, the parties in this appeal will be referred to as arrayed in the writ petition. The brief facts, which are necessary for consideration of this appeal, are set out hereunder:- (i) The respondent herein has filed the Writ Petition. According to him, he was appointed as a Junior Assistant on 31.8.1989 in the Taluk Office, Palayamkottai, and subsequently promoted as Assistant in the year 1994 and transferred to Radhapuram Taluk Office in the year 2003. After joining at Radhapuram Taluk Office, the petitioner availed of leave on different spells. The 4th respondent framed charges against the petitioner under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, hereinafter referred to as the "Rules", by his proceedings dated 1.12.2003. The charges framed against the respondent are that he had unauthorisedly absented from 1.9.2003 to 13.9.2003, 15.1.2003 to 17.10.2003 and 11.11.2003 to 26.11.2003 totally for 46 days. The Petitioner submitted his explanation to the said charge memo. However, the 4th respondent has passed an order on 18.2.2004 and imposed the punishment of stoppage of increment for a period of one year without cumulative effect. Against which, the petitioner preferred an appeal to the second respondent and the same was dismissed on 28.7.2004 and he filed a revision petition to the Government which was also dismissed by the first respondent on 23.8.2007. (ii) Apart from the above said charge memo, the Tahsildar of Radhapuram also issued a separate charge memo on 20.10.2005, for which, the petitioner submitted his explanation on 27.12.2005 and in which a punishment was imposed on the petitioner stopping the increment for a period of six months. There again, the petitioner filed an appeal before the 4th respondent, which was dismissed. Against which, the petitioner filed a revision, that was considered and allowed on 29.11.2007 by the second respondent. (iii) Thereafter, the third respondent called for particulars to prepare the panel for promotion to the post of Deputy Tahsildar for the year 2006 and the petitioner's name was not included in the list. He made a representation and a reply was sent by the respondents stating that the petitioner was imposed with two punishments. Again, the third respondent called for particulars for preparing the Panel of Deputy Tahsildars for the year 2007 and this time, the petitioner's name was included in Serial No.7. However, promotion was not given to the petitioner. (iv) It is the case of the petitioner that the 4th respondent issued an order on 7.8.2004 regularising the leave period and consequently the charge of unauthorised absence is deemed to be dropped. The petitioner, claiming that the promotion which was https://hcservices.ecourts.gov.in/hcservices/ denied based on the charges and punishments, which having been dropped, he is entitled to promotion and hence preferred the writ petition, which was allowed by this Court. Aggrieved by the order in the Writ Petition, the State has preferred this Writ Appeal. This Court admitted the Writ Appeal and granted interim stay of the order passed by the Writ Court. (v) The Writ Petitioner (respondent herein) has filed a counter affidavit in the Stay Petition wherein he has not disputed the factual aspects of his initial appointment, subsequent promotion as Assistant, charge memos issued to him and the explanations submitted by him and the punishment imposed on him. It is further stated by the petitioner that though the second charge memo under Section 17(a) of the Rules has been framed and the punishment of stoppage of increment for a period of six months without cumulative effect was imposed on him, however, on appeal to the second respondent, the said punishment was set aside. (vi) According to the petitioner, because of the punishment of stoppage of increment for a period of one year without cumulative effect imposed on him, his name was not included in the temporary Panel for promotion to the post of Deputy Tashildar on 13.3.2007, 21.1.2008 respectively and he is not promoted till this date. It is stated that since the the charges 1 to 3 are inter- linked to each other and the second charge of unauthorised absence having been regularised by the 4th respondent, the other charges will not survive in the eye of law. It is also averred that petitioner's juniors were already promoted for the post of Deputy Tahsildar and his promotion was refused and now the respondents are making attempts to fill up the post of Deputy Tahsildar for the year 2008 and if that is done, he will be put to irreparable loss and hardship and prayed for vacating the interim stay. 3. Mr.S.Rajasekar, learned Additional Government Pleader appearing for the appellants/State and Mr.S.Gomathinayagam, learned counsel appearing for the respondent/Writ Petitioner. 4. Learned Additional Government Pleader appearing for the appellants/State submitted that the charges framed against the respondent/writ petitioner, in the first charge memo, other than his unauthorised absence are proved and therefore, he is not entitled for promotion even though the leave period was regularised. He would further contend that the petitioner's negligence in performing the official duty and performing the official duty without involvement are the two reasons which warranted disciplinary proceedings against him and the punishment was imposed. It is also contended that merely because the unauthorised absence was regularised at a later date, the same will not exonerate the petitioner from the charges which were proved and it cannot be construed that the charges are deemed to be dropped and hence the punishment imposed on the petitioner is legally sustainable. 5. Learned Additional Government Pleader placed reliance upon the judgement of the Apex Court in State of Madhya Pradesh Vs. Harihar Gopal, reported in 1969 SLR 274 and contended that the https://hcservices.ecourts.gov.in/hcservices/ subsequent order granting leave was made only for the purposes of maintaining correct record of service and the subsequent order will not have the effect of invalidating the earlier punishment. 6. Learned Additional Government Pleader also relied on the judgement of the Apex Court in Maan Singh Vs. Union of India and others, reported in (2003) 3 SCC 464 and submitted that subsequent order treating the unauthorised absence as one of leave without pay will not amount to condemnation of the unauthorised absence. 7. Per contra, the learned counsel for the respondent (Writ Petitioner) reiterated the averments made in the counter affidavit filed in the stay petition and submitted that all the three charges are inter-linked to each other and since the second charge of unauthorised absence having been regularised, the other two charges do not survive independently and therefore the entire charges are not valid in law. In other words, it is contended by the learned counsel for the petitioner that the second charge of unauthorised absence having been regularised, the charges framed against the petitioner and the consequential punishment imposed cannot be sustained in view of the decision of the Apex Court rendered in 1998 (8) Supreme 128 (State of Punjab & others Vs. Bakshish Singh), which has been rightly followed by the learned Single Judge. 8. In State of Punjab & others Vs. Bakshish Singh, reported in 1998 (8) Supreme 128, the Hon'ble Supreme Court held as follows:- "3. Having affirmed the findings of the trial court that the charge of absence from duty did not survive, the lower appellate court proceeded to consider the question whether absence from duty was a misconduct of the gravest kind so as to warrant the maximum penalty of "dismissal from service" or it was a mere "misconduct" for which lesser punishment would be appropriate. Having found that it was not a case of misconduct of the gravest kind, the lower appellate court remanded the case back to the punishing authority for passing a fresh order of punishment. The appellant then filed a second appeal in the High Court which was dismissed summarily. 4. It will thus be seen that the trial court as also the lower appellate court had both recorded the findings that the period of absence from duty having been regularised and converted into leave without pay, the charge of absence from duty did not survive. Once it was found as a fact that the charge of unauthorised absence from duty did not survive, we fail to understand how the lower appellate court could remand the matter back to the punishing authority for passing a fresh order of punishment. In the fact of these findings, specially the finding of the trial court that proper opportunity of hearing was not given and the signatures of the respondent were obtained under duress during departmental proceedings which have not been set aside by the https://hcservices.ecourts.gov.in/hcservices/ lower appellate court, we are of the view that there was no occasion to remand the case to the punishing authority merely for passing a fresh order of punishment." 9. Learned counsel for the respondent (Writ Petitioner) further placed reliance on the Division Bench decision of this Court in Subramanian Vs. Government of Tamil Nadu, rep.by its Secretary, Chennai and others, reported in (2008) 5 MLJ 350, and sought to contend that when the employee is imposed upon a punishment of stoppage of increment for one year without cumulative effect, which could be construed only as a minor punishment, he could not be denied further promotion solely based on the same, if he is otherwise fit for promotion. In the said decision this Court observed,- "22. The petitioner was admittedly imposed punishment of stoppage of increment for two years without cumulative effect, as per G.O (2D) No.49, dated 16.10.2000. As contended by the learned counsel for the petitioner, it could be construed only as a minor punishment and solely based on the same, he could not be denied further promotion. It is seen further that stoppage of increment was given effect by order dated 16.10.2000 for two years. The respondents have not denied that the petitioner had to attain superannuation only on 30.4.2003. In such circumstances, he was eligible to be considered for promotion along with his junior, prior to the date of superannuation. If he is otherwise fit for promotion along with his juniors, he would be eligible for notional promotion and based on which, eligible for corresponding retirement benefits". 10. We have heard the learned counsel appeared on either side and considered their submissions, gone through the relevant materials placed on record and carefully examined the decisions relied upon by them. 11. As seen from the charge memo dated 1.12.2003, issued by the District Revenue Officer, the 4th respondent in the writ petition, there are totally three charges framed against the petitioner. They are as follows:- "Charge No:1: Negligent in performing official duty and performed duty without involvement and not properly taken action in the files from 13.6.2003, the date of taking charge as Assistant in Radhapuram Tahsildar Office; Charge No.2: From 13.6.2003 to 25.11.2003, attended duty for only 35 days and availed Unearned Leave on Medical Certificate from 4.8.2003 to 31.8.2003; Earned Leave from 20.10.2003 to 26.10.2003; Unearned Leave on Medical Certificate from 27.10.2003 to 10.11.2003; Casual Leave for two days on 10.10.2003 https://hcservices.ecourts.gov.in/hcservices/ and 13.10.2003 without prior permission; absented from duty without permission or leave letter from 1.9.2003 to 30.9.2003, 15.10.2003 to 17.10.2003 and from 11.11.2003 to 26.11.2003 and thus violated the Government Rules; Charge No:3: Failure in performing the duties and responsibilities as a Government Servant." 12. On verification of the pleadings and on going through the back files, we find that the fourth respondent, on a consideration of the explanation of the petitioner, and not satisfied with the same, imposed the punishment of stoppage of increment for a period of one year, without cumulative effect. The petitioner preferred an appeal to the 2nd respondent-Special Commissioner and Commissioner of Revenue Administration, Chennai, and the Appellate Authority after examining the case of the petitioner and independently considering the charges levelled against the petitioner under Rule 17(a) of the Rules, in his order dated 28.7.2004, recorded the findings that the petitioner has attended office only for 35 days between 13.6.2003 and 25.11.2003 and the individual has not explained his lethargic attitude though he has given explanation that he has served night and day; since lapses have been brought to the notice of the Collector, Tirunelveli, when there was a cursory inspection at the Taluk Office, Radhapuram on 4.11.2003, the disciplinary action has been initiated against him; generally misconduct of a Government Servant cannot be allowed in Government Service; the punishment awarded to him is only minor and there is no valid reasons adduced by the petitioner to interfere with the District Revenue Officer's order. Ultimately, the Appellate Authority rejected the appeal and the petitioner preferred a revision before the Government and the Government also confirmed the order of the authorities below citing the reason that the petitioner has not adduced any new explanation in the revision petition. 13. From a careful reading of the impugned order, it is evident that the learned Single Judge has considered the unauthorised absence, which is the second charge alone, and referring to the judgements of this court on the question of unauthorised absence, held that the alleged unauthorised absence of the petitioner having been regularised, arrived at the conclusion that the charges framed against the petitioner and the consequential punishment imposed against him cannot be sustained and further directed the third respondent to consider the promotion of the petitioner. However, it is seen that Charge No:1 which deals with "negligence in performing the official duty and performing the official duty without involvement and not properly taken action in the files from 13.6.2003, the date of taking charge as Assistant in Radhapuram Tahsildar Office", has not at all been considered by the learned Single Judge, though the authorities below after going through the files and there being no satisfactory explanation for the negligence and having noticed that when the petitioner was put in charge of encroachment files, without going through the back files and pending files, the petitioner was in the habit of writing only interim replies on the back side of the https://hcservices.ecourts.gov.in/hcservices/ Collector's D.O letters, imposed the punishment of stoppage of increment for a period of one year without cumulative effect. Therefore it is clear that the respondents have taken into consideration all the three charges and imposed the punishment as such. Hence, the Writ Court in considering Charge No.2 alone in holding that as the unauthorised absence was subsequently regularised and consequently, it cannot stand in the way of the petitioner's promotion as if the charge itself is deemed to be dropped and the petitioner having been denied promotion and directing the third respondent to consider the promotion, in our considered view, is not a correct and proper conclusion arrived at, as it would not reflect on Charge Nos.1 and 3 of any consideration. 14. Whether subsequent order of sanctioning the leave for the unauthorised absence period would invalidate the charges and punishment imposed thereon came up for consideration in 1969 SLR 274 (SC) (State of Madhya Pradesh Vs. Harihar Gopal), and a Three Judges Bench of the Supreme Court of India has held as follows:- "7. It was urged before the High Court on behalf of the State that the order granting leave was only for the purpose of regularising the absence from duty and for maintaining a true account of absence from duty, and had not the effect of first sanctioning lave to the respondent to which he was entitled, and then removing him from service for absence from duty. The High Court rejected this contention observing: "......When the leave was granted even though belatedly, it had the effect of authorising with retrospective effect the petitioner's (respondent's) absence from duty during the period for which it was sanctioned. Having thus authorised the petitioner's (respondent's) absence from duty, it was not open to the State Government to proceed on the basis that his absence was unauthorised." These observations proceed upon a misconception of the sequence in the orders passed by the State Government and the true effect of the order granting leave. The order granting leave was made only for the purpose of maintaining a correct record of the duration of service, and adjustment of leave due to the respondent and for regularising his absence from duty. Our attention has not been invited to any rules governing the respondent's service conditions under which an order regularising absence from duty subsequent to termination of employment has the effect of invalidating the termination....." 15. When a similar issue came up again for consideration before the Apex Court in Maan Singh Vs. Union of India and others, [(2003) 3 SCC 464], a Bench of two learned Judges referred the matter to a Bench of three Judges in view of apparent conflict between the decisions of the Apex Court in State of M.P. Vs. Harihar Gopal (1969 SLR 274 (SC) and State of Punjab Vs. Bakshish https://hcservices.ecourts.gov.in/hcservices/ Singh (1998 (8) SCC 222) and their Lordships have followed the decision in Harihar Gopal case and explained the ratio decidendi in Bakshish Singh case, which has been followed by the learned Single Judge, while allowing the Writ Petition. The Apex Court in Bakshish Singh case really considered the scope of powers of remand and decided the case, and did not, in fact, consider the question whether the view expressed by the first appellate court in affirming the order of the trial court was justified or not, but proceeded on the basis that on the conclusion reached by the first appellate court whether remand to disciplinary authority is permissible in law and recorded its findings. Therefore, as rightly observed by the Apex Court in Maan Singh Vs. Union of India and others, reported in (2003) 3 SCC 464, the decision in Bakshish Singh case is not an authority for the proposition that the order terminating the employment cannot be sustained inasmuch as in the later part of the same order the disciplinary authority also regularised unauthorised absence from duty by granting an employee leave without pay. 16. In Maan Singh case, the Apex Court, apart from explaining the factual position in Bakshish Singh case, also overruled nearly seven decisions of various High Courts and followed the ratio laid down in Harihar Gopal case. In that context, the Apex Court held thus:- "8. Our attention is also drawn to certain other decisions of this Court in Union of India V. Giriraj Sharma (1994 Supp(3) SCC 755; G.Rajendra V. Vikrant Tyres Ltd., (2002) 10 SCC 438; Virendra Kumar V. Chief of the Army Staff (1987) 2 SCC 217); Jai Shanker V. State of Rajasthan (AIR 1966 SC 492); Union of India V. Ram Phal (1996 7 SCC 546); and Major Singh V. State of Punjab (2000) 9 SCC 473). However, these decisions have no application to the facts of the present case. 9. The instant case fully falls within the ratio of the decision of this Court in Harihar Gopal Case and following the said decision, we uphold the view taken by the High Court. Hence, this appeal stands dismissed". 17. In light of the decision of the the Apex Court in Maan Singh Vs. Union of India and others, reported in (2003) 3 SCC 464, the subsequent regularisation of the unauthorised leave period after passing of the punishment order would not be deemed to have been dropped or invalidated the charges and the punishments imposed thereon and therefore the petitioner is not entitled to claim promotion during the period in which the punishment was in force. Admittedly, the order of punishment was passed by the 4th respondent as early as on 18.2.2004, whereas the second respondent has regularised the leave period only on 7.9.2004. Therefore, looked at from any angle, we are not satisfied with the reasoning of the learned Single Judge in quashing the impugned order of punishment and in further directing the third respondent to consider the promotion of the petitioner from the date of promotion of his https://hcservices.ecourts.gov.in/hcservices/ junior. Accordingly, we set aside the order of the learned Single Judge and allow the Writ Appeal. 18. However, the charges having been framed only under Section 17(a) of the Rules and the punishment imposed is minor in nature which had the effect only for a period of one year, the petitioner's name for further promotion has to be considered for the future vacancies and accordingly, we direct the appellants to consider the respondent/petitioner for inclusion of his name in the Panel for Deputy Tahsildar in future vacancies and the promotion may be considered in accordance with law. 19. The Writ Appeal is allowed with the above directions. Consequently, connected Miscellaneous Petition is closed. But, in the facts and circumstances of the case, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gkv 1. The Secretary to Government Revenue Department, Fort St.George, Chennai-9 2. The Special Commissioner & Commissioner of Revenue Administration, Chepauk, Chennai-5 3. The District Collector, Collector Office, Tirunelveli. 4. The District Revenue Officer, Collector Office, Tirunelveli. 1 cc To Mr.S.Gomathinayagam, Advocate, SR.63474 WA.No:994 of 2008 RSI(CO) SRA(19/11/2008) https://hcservices.ecourts.gov.in/hcservices/