IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.04.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.6538 of 2009 and M.P.No.1 of 2009 N.Ulaganathan ... Petitioner Vs The Chief Executive Engineer, Tamilnadu Khadi & Village Industries Board, Kuralagam, Chennai – 108. ... Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, to call for the records connected with Memo R.C.No.17526/E4(1)/2005 dated 13.1.2009 of the respondent and quash the same in respect of denial of reinstatement of the petitioner to be conducted re-enquiry on the said charges pursuance to the chargememo dated 27.5.96 and direct the respondent to reinstate the petitioner into service as per the 31 (d) of Tamilnadu Khadi and Village Industries Board Regulation Rule and grant arrears of subsistance allowances from the date of removal from service to till this day. For Petitioner : Mr.P.Jayaraman,Senior Advocate For Mr.G.Elanchezhiyan For Respondent : Mr.S.Packiaraj O R D E R The writ petition is filed by the petitioner seeking to challenge the order dated 13.01.2009 and after setting aside the same also to quash the charge memo dated 27.05.1996 with a further direction to reinstate the petitioner in terms of regulation 31(d) of the Tamil Nadu Khadi and Village Industries Board Regulations and also to grant arrears of subsistance allowance from the date of removal till the date of the petition. 2. When the matter came up on 16.04.2009, this Court issued notice to the Standing Counsel for the respondents. Pending the writ petition, though an interim direction was sought for, the same was not granted. On notice from this Court, a counter affidavit dated 22.12.2009 was filed by the respondent. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner had earlier filed a writ petition being W.P.No.16277 of 2005 challenging the order of removal dated 23.05.2003 passed by the Chief Executive Officer, Tamil Nadu Khadi and Village Industries Board and confirmed by an order dated 10.03.2005 passed by the Chairman of the Khadi and Village Industries Board. This Court by a final order dated 13.11.2008, in paragraph 12 directed as follows: 12. In the result, the impugned order in Na.Ka.No.38505/E4(1)/96 dated 23.05.2003 is set aside and the writ petition is disposed of with the following directions:- a)Third Respondent shall appoint either Asst.Director (other than Karur District) or any other officer as Enquiry Officer; b)Third respondent shall also appoint the Presenting Officer to represent Thuraiyur Carpentry and Blacksmith Workers Industrial Co- operative Society. Preferably, Special Officer of the Society shall be the Presenting Officer. c)If Thuraiyur Carpentry and Blacksmith Workers Industrial Co-operative Society is not functioning, 3rd Respondent shall appoint any other competent person as Presenting Officer to represent Thuraiyur Carpentry and Blacksmith Workers Industrial Co-operative Society and to adduce evidence on behalf of the Society. d)Third Respondent shall appoint Enquiry Officer and Presenting Officer within a period of four weeks from the date of receipt of copy of this Order. e)Enquiry Officer shall complete the enquiry preferably within a period of four months after his appointment, but not later than six months. f)Both parties are directed to co-operate in the departmental proceedings. 4. After the judgment was delivered by this Court, the petitioner sent a representation dated 01.12.2008. The respondent by the impugned order dated 13.01.2009 directed re-enquiry. He was also informed that he need not be restored to service pending the re-enquiry. 5. It was contended by the learned Senior Counsel for the petitioner that before holding an enquiry, reinstatement should have been ordered. In the absence of such reinstatement, any order passed for holding a fresh enquiry will be illegal. 6. Mr.P.Jayaraman, the learned Senior Counsel placed reliance upon the judgment of the Supreme Court in Union of India v. Y.S.Sandhu, reported in 2008(5)CTC 285. In that case, the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court referred to the earlier two decisions of the Supreme Court in Hiran Mayee Bhattacharyya v. Secretary, S.M.School for Girls, 2002 (10) SCC 293 and U.P.State Spinning Co. Ltd. v. R.S.Pandey,2005(8)SCC 264. After referring to those two judgments, the Supreme Court directed restoration of service of the person concerned without backwages in those cases. The Supreme Court in paragraph 8 directed the same principles to be followed in the Sandhu's case also. 7. The learned Senior Counsel also relied upon the judgment of the Supreme Court in Managing Director ECIL, Hyderabad v. B.Karunakar reported in 1993 (4) SCC 737, wherein it was held that if the punishment was set aside, the proper relief to be granted is to direct reinstatement of the employee with liberty to the Management to proceed with the enquiry by placing the employee under suspension and continue the enquiry from that stage. Therefore, he claimed that he should be allowed the benefit of reinstatement pending the enquiry. 8. The learned Senior Counsel also relied upon Regulation 31 (d) of Tamil Nadu Khadi and Village Industries Board. It is necessary to extract the said provision, which is as follows; "31d) Where a penalty of dismissal removal or compulsory retirement A service imposed upon a Board Employee is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Board employee shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders." (Emphasis added) 9. In the counter affidavit filed by the respondent, it was stated that the petitioner cannot re-agitate the matter which is already covered by an order passed by this Court dated 13.11.2008 in W.P.No.16277 of 2005. It was also stated that when this Court has directed fresh enquiry, they are duty bound to conduct a fresh enquiry. Even the judgment relied on by the petitioner namely Y.S.Sandhu case (cited supra), the Court held that entitlement of an employee would be adjudicated only after the result of the disciplinary proceedings and therefore he has to wait for the same. https://hcservices.ecourts.gov.in/hcservices/ 10. The Supreme Court had an occasion to consider a similar rule to Rule 31(d) of Tamil Nadu Khadi and Village Industries Board Regulations which is Rule 12(4) of Central Civil Services (Classification, Control & Appeal) Rules, 1957 vide its decision in Khem Chand v. Union of India reported in 1963 Suppl (1) SCR 229 = AIR 1963 SC 687 held in paragraphs 16,18 and 19 as follows: "16. Equally untenable is the appellant’s next contention that the impugned Rule contravenes the provisions of Article 19(l)(f) of the Constitution. The argument is that as a result of this Court’s decree the appellant had a right to his arrears of pay and allowances. This right constituted his property; and as the effect of the impugned Rule is that he would not, for some time at least, get those arrears it restricts his right. It may be conceded that the right to arrears of pay and allowances constituted property within the meaning of Article 19(l)(f) of the Constitution and further, that the effect of Rule 12(4) is a substantial restriction of his right in respect of that property under Art 19(l)(f). The question remains whether this restriction is a reasonable restriction in the interests of the general public. No body can seriously doubt the importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons. Such action is certainly against the immediate interests of the government servant concerned; but is absolutely necessary in the interests of the general public for serving whose interests the government machinery exists and functions. Suspension of a government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. It follows, therefore, that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold a further enquiry on the same facts against him a fresh order of suspension till the enquiry can be completed, in accordance with law, is a reasonable step of the procedure. We have no hesitation in holding, therefore, that insofar as Rule 12(4) restricts the appellant’s right under Article 19 (1)(f) of the Constitution, it is a reasonable restriction in the interests of the general public. Rule 12(4) is therefore within the saving provisions of Article 19(6), so that there is no contravention of the constitutional provisions. ...... https://hcservices.ecourts.gov.in/hcservices/ 18. This brings us to the attack on the Rule on the basis of Article 14. According to Mr Sharma the result of the impugnet Rule is that where a penalty of dismissal, removal or compulsory retirement from service imposed on a government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority decides to hold a further enquiry against him on the allegations on which the penalty was originally imposed, the consequence will follow that the government servant shall be deemed to have been placed under suspension from the date of the original imposition of penalty, whereas no such consequence will follow where a similar penalty is set aside not by a court of law but by, the departmental disciplinary authority. According to Mr Sharma, therefore, there is a discrimination between a government servant the penalty of dismissal, removal or compulsory retirement on whom is set aside by a decision of a court of law and another government servant a similar penalty on whom is set aside on appeal by the departmental disciplinary authority. The argument however ignores the result of Rule 30(2) and Rule 12(3) of these Rules. Rule 30(2) provides inter alia that in the case of an appeal against an order imposing any of the penalties specified in Rule 13 i.e. the penalty of dismissal, removal or compulsory retirement and certain other penalties, the Appellate Authority shall pass orders: “(i) setting aside, reducing, confirming or enhancing the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.” Rule 12(3) provides that “where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders”. Where a penalty of dismissal, removal or compulsory retirement imposed upon a government servant is set aside by the departmental authority on appeal, it may or may not order further enquiry; just as where a similar penalty is set aside by a decision of a court of law the https://hcservices.ecourts.gov.in/hcservices/ disciplinary authority may or may not direct a further enquiry. Where the Appellate Authority after setting aside a penalty of dismissal, removal or compulsory retirement makes an order under Rule 30(2)(ii) remitting the case to the authority which imposed the penalty, for further enquiry, Rule 12(3) will come into operation and so the order of suspension which in almost all cases is likely to be made where a disciplinary proceeding is contemplated or is pending shall be deemed to have continued in force on and from the date of the original order of dismissal and shall remain in force until further orders.There is therefore no difference “worth the name between the effect of Rule 12(4) on a government servant the penalty of dismissal, removal or compulsory retirement on whom is set aside by a decision of a court of law and a further enquiry is decided upon and the effect of Rule l2(4) on another government servant a similar penalty on whom is set aside in appeal or on review by the departmental authority and a further enquiry is decided upon. In both cases the government servant will be deemed to be under suspension from the date of the original order of dismissal, except that where in a departmental enquiry a government servant was not placed under suspension prior to the date when the penalty was imposed, this result will not follow, as Rule l2(3) would not then have any operation. It is entirely unlikely however, that ordinarily, a government servant will not be placed under suspension prior to the date of his dismissal. Rule 12(1) provides that the appointing authority or any authority to which it is subordinate or any other authority empowered by the President in that behalf may place a government servant under suspension: (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial. Mr Sharma does not say that ordinarily any cases occur where a government servant is visited with a penalty of dismissal, removal or compulsory retirement, in a departmental proceeding, without there being a previous order of suspension under the provisions of Rulel 2(l) and we do not think any such case ordinarily occurs. Consequently, the effect of Rule 12(3) will be the same on a government servant a penalty of dismissal, removal or compulsory retirement on whom is set aside in appeal by the departmental authority as the effect of Rule l2(4) on a government servant a similar https://hcservices.ecourts.gov.in/hcservices/ penalty on whom is set aside by a decision of a court of law. The contention that Rule 12(4) contravenes Article 14 of the Constitution must therefore be rejected. 19. As we find that all the above attacks on the validity of Rule l2(4) fail, the further attack on the Rule on the basis of Article 31(1) of the Constitution also necessarily fails. For, whatever deprivation of property may result from Rule l2(4) would be by authority of law-the law being Rule l2 (4)." 11. The said Rule 12(4) was subsequently made as Rule 10(4) of CCS(CCA) Rules. When that rule came to be challenged, the Supreme Court upheld the constitutional validity of the said rule in Mahender Singh v. Union of India reported in 1991 Supp (2) SCC 127. The following passage found in paragraph 6 may be usefully extracted below: "6. There are three requirements for the application of Rule 10(4); (i) the government servant is dismissed, removed or compulsorily retired as a measure of penalty; (ii) the penalty of dismissal, removal or compulsory retirement is set aside or declared or rendered void by a decision of a court of law; (iii) the disciplinary authority, decides to hold a further inquiry against the government servant on the allegations on which the original order of penalty was imposed. If these three requirements are satisfied then the government servant shall be deemed to have been placed under suspension by the appointing authority from the date of original order of penalty of dismissal, removal or compulsory retirement and he shall continue to remain under suspension until further orders." 12. Thereafter, the very same rule was once again considered by the Supreme Court in Nelson Motis v. Union of India reported in (1992) 4 SCC 711. In paragraph 10, the Supreme Court observed as follows: "10. .....The cases which attract sub-rule (4), are thus those where the penalty imposed on the government servant is set aside on technical grounds not touching the merits of the case. Since at one stage the disciplinary authority records a finding on the charges against the government servant, which is not upset on merits, the situation is entirely different from that in the https://hcservices.ecourts.gov.in/hcservices/ cases covered by sub-rule (3). The classification is thus founded on an intelligible differentia, having a rational relation to the object of the rules and Rule 10 (4) has to be held as constitutionally valid." 13. In the light of the above, there is no substance in the writ petition filed by the petitioner. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To The Chief Executive Engineer, Tamilnadu Khadi & Village Industries Board, Kuralagam, Chennai – 108. +1cc to Mr.G.Elanchezhiyan, Advocate Sr 27795 +1cc to Mr.S.Packiaraj, Advocate Sr 28331 MBS(CO) km/4.5. W.P.No.6538 of 2009 https://hcservices.ecourts.gov.in/hcservices/