IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.5019 of 2007 (O.A.No.2494 of 2001) T.Jeyaraj .. Petitioner Vs. The Government of Tamilnadu represented by the Secretary to Government, Cooperation, Food and Consumer Protection Department, Fort St. George, Chennai-9. .. Respondents O.A.No.2494 of 2001 was filed before the Tamil Nadu Administrative Tribunal and later it was transferred to this court and renumbered as W.P.No.5019 of 2007 to call for the records relating to the impugned order of the respondent in G.O.No.40, Cooperation, Food and Consumer Protection Department, dated 15.2.2001 and to quash the same and to grant all consequential benefits to the applicant. For Petitioner : Mr.P.Rajendran For Respondents : Mr.R.Murali, GA ORDER The petitioner filed O.A.No.2494 of 2001, challenging the order, dated 15.2.2001 made in G.O.Ms.No.40, Cooperation Department issued by the respondent State Government. 2.By the impugned order, the petitioner was dismissed from service. The O.A. was admitted on 12.4.2001 and notice was ordered to the respondent. The respondent has filed a reply affidavit, dated Nil (April, 2004). In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.5019 of 2007. 3.It is seen from the records that the petitioner was working as a Deputy Registrar, Cooperative Societies. He was made as a Special Officer in-charge of Kanyakumari District Central Cooperative Bank, Nagercoil on 01.11.1995. From 1.4.1996 to 27.8.1996, he was made as a regular Special Officer. For his conduct during that period, a charge memo, dated 14.8.1996 framed under Rule 17(b) of the Tamil Nadu Civil Services (Disciplinary and https://hcservices.ecourts.gov.in/hcservices/ Appeal) rules was given to him. There were two charges. The first charge related to appointing five persons directly in violation of Tamil Nadu Cooperative Societies Act and appointing one more person on compassionate ground in violation of the Government's instructions. The second charge was irregularities in purchase of pesticides and gunnies at higher rates and also increased the manure filling rates without calling for tenders and spending Rs.29,700/- for construction of special room for chemist without administrative sanction and built the compound wall spending Rs.18062/- without administrative sanction and also purchased furniture from a private shop without calling for quotations to an extent of Rs.1,09,242/-. The petitioner gave his explanation against the charges and an enquiry was conducted against the petitioner. 4.The Joint Registrar who conducted the enquiry found that 1,2,4,5 and 6th charges were fully proved and a part of the 7th charge was proved and that the third charge as well as a part of the 7th charge were not proved. The petitioner was asked to give his explanation. The petitioner also gave his explanation. Thereafter, the State Government consulted the TNPSC. The TNPSC gave its opinion, dated 27.11.2009, stating that the petitioner can be given compulsory retirement. But, however, the Government held that out of nine charges, eight charges were proved and one charge was partly proved. Therefore, he can be dismissed from service. They did not accept the recommendation of the TNPSC in this regard. It is against this dismissal order passed by the State Government, the original application was filed. 5.The contention raised by the petitioner was that though the Government took charge no.3 was proved deferring from the enquiry officer's report, it did not give any explanation. Therefore, the final order passed in this regard amounts to mechanical application of mind and denial of natural justice. He also stated that when TNPSC was consulted and it had recommended for a lesser punishment, the Government should have accepted the said recommendation and should not have issued maximum penalty of dismissal, thereby depriving the petitioner from getting his terminal benefits when he had rendered 36 years of service. 6.The respondents in their reply affidavit in respect of the charges had averred as follows: "4.....A copy of the Inquiry report has been communicated to the applicant by the Government in their letter No.44901/CD2/96-5, Co- operation, Food and Consumer Protection Department, Dated 4.2.97. The applicant submitted his further representation on the findings of the Inquiry Officer in his letter dated 10.3.97. In respect of second set of charges the applicant has submitted his explanation in his letter dated 14.2.97. Inquiry was conducted and Inquiry Officer has held the charges No.1,2,4,5 and 6 as proved https://hcservices.ecourts.gov.in/hcservices/ and charge No.7 as partly proved. The Inquiry Officer has held the charge No.3 as not proved. A copy of the Inquiry report has been communicated to the applicant by the Government in their Lr.No.7114/CD2/97-3, Co-operation, Food and Consumer Protection Department, Dated 20.8.97. The applicant submitted his further explanation on the findings of the Inquiry Officer in his letter dated 16.9.97. After considering the above two sets of charges and after consulting the Tamil Nadu Public Service Commission, the Government have passed final orders for both the above two sets of charges in their G.O.(Ms.)No.40, Co- operation, Food and Consumer Protection Department, Dated 15.2.2001 removing the applicant from Government Service for the proven charges." "5....it is submitted that the Inquiry Officer in respect of charge No.3, has held the charge as not proved. Government while communicating the Inquiry report to the applicant did not furnish their disagreement with the views if the Inquiry Officer in respect of charge No.3. On examination of the charge, explanation of the individual and the findings of the Enquiry Officer the Government considered as the charge-3 also as proved. But while communicating the Enquiry Officer report to the Accused Officer, the deviation of the Government has not been communicated to the Accused Officer. Accordingly orders were issued in G.O.(Ms)No.40, Co-operation, Food and Consumer Protection Department, Dated 15.2.2001. However in the final orders passed in G.O.(Ms)No.40, Cooperation, Food and Consumer Protection Department, Dated 15.2.2001, Government have concluded that this Charge No.3 as proved." 7.With reference to not adhering to the TNPSC's advice, in paragraph 6, it was averred as follows: "6.Though the Tamil Nadu Public Service Commission gave its opinion, it is not legally binding on the disciplinary authority i.e., Government to accept the opinion of the Tamil Nadu Public Service Commission, nor, it is compulsorily. Government have taken the decision of removal from service based on the gravity of charges proved against the applicant." 8.On the issue of not adhering to TNPSC's advice, the respondents may be well founded in view of the fact that consultation with TNPSC as per Article 320(3) of the Constitution was held to be not mandatory and that the Government is not always bound by the advice of the TNPSC. The Supreme Court had in more https://hcservices.ecourts.gov.in/hcservices/ than one occasion interpreted the scope of Article 320(3) of the Constitution. It is not necessary to multiply the citations. It is suffice if a reference is made to the judgment in Ram Gopal Chaturvedi v. State of M.P., reported in (1969) 2 SCC 240. Para 7 of the said order reads as follows: "7. It was argued that the impugned order was invalid as it was passed without consulting the State Public Service Commission under Article 320(3)(c) of the Constitution. There is no merit in this contention. The case of State of U.P. v. M.L. Srivastava1 decided that the provisions of Article 320(3)(c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action. 9.However, in the present case, when the Government differed from the report of the enquiry officer, it is mandatory for them to give notice to the petitioner on such disagreement. The action of the Government is not strictly in accordance with the rules of the Supreme Court in Lav Nigam Vs. Chairman & MD, IDI Ltd. and another reported in (2006) 9 SCC 440. Out of several charges, even one charge is not proved, it is always open to the respondents to justify the final order on the basis of the proved charge. In the reply affidavit, no such attempt was made. The respondents had fairly admitted that for the disagreement with reference to the third charge, there was no notice to the petitioner. However, this court is not inclined to set aside the order only on this technical ground. 10.But, on the contrary, since the intention of the Government is to impose a major penalty and if such major penalties included dismissal, discharge, compulsory retirement and reduction in rank, the Government should have imposed penalty of compulsory retirement as recommended by the TNPSC. There is no attempt by the Government to state that they had specifically took note of the petitioner's 36 years of service and that it could have decided to send the petitioner on compulsory retirement, which would have enured the petitioner from receiving his terminal benefits. 11.The Supreme Court in B.C.Chadurvedi Vs. Union of India reported in 1996 (6) SCC 749 has held that in an extreme case, this court under Article 226 can even modify the penalty, if penalty is shockingly disproportionate. Therefore, considering that TNPSC had recommended conversion of penalty into one compulsory retirement, the fact that the petitioner had put in 36 years of service and also taking into account that the respondents have violated Lav Nigam case (cited supra) in not affording an opportunity, this court is inclined to modify the penalty imposed on the petitioner by the impugned order into one of compulsory retirement. 12.In the light of the above, the writ petition stands allowed partly. No costs. The penalty imposed on the petitioner by https://hcservices.ecourts.gov.in/hcservices/ the impugned order is converted into one of compulsory retirement. The respondents are directed to issue an appropriate order modifying the penalty and also to grant all necessary terminal benefits consequent upon imposing such penalty, within a period of 12 (twelve) weeks from the date of receipt of copy of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To The Secretary to Government, The Government of Tamilnadu Cooperation, Food and Consumer Protection Department, Fort St. George,Chennai-9. 1 cc To Mr.P.Rajendran, Advocate, SR.24441. W.P.NO.5019 OF 2007 AKR(CO) RVL 20.04.2010 https://hcservices.ecourts.gov.in/hcservices/