IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.02.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.17962 OF 2008 and M.P.No.1 of 2008 E.Pitchaimari .. Petitioner vs. 1.Mr.C.P.Singh,I.A.S. Special Commissioner and Transport Commissioner Chepauk, Chennai 600 009. 2.The Transport Commissioner Chepauk, Chennai 600 005. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the order of the first respondent herein passed in his memo No. 52634/VA2/2006 dated 27.6.2008 and quash the same and consequently direct the respondents herein to drop all further proceedings on the 17(b) charge framed against the petitioner in Memo R.No. 52634/VC3/06 dated 10.7.2007 For petitioner : Mr.Ravi Shanmugam For respondents : Mr.R.Murali Government Advocate ORDER The petitioner has challenged the impugned memo issued by the second respondent proposing to decide against the finding of the enquiry officer in respect of charges 1 and 2 and calling for further representation from the petitioner, by enclosing a copy of the report of the enquiry officer who has held the charges not proved against the petitioner. The memo also contains annexure explaining the reasons for holding the charges as proved, disagreeing with the findings of the enquiry officer. 2. The petitioner who joined as Junior Assistant through the Tamil Nadu Public Service Commission on 8.1.1987 and posted in the https://hcservices.ecourts.gov.in/hcservices/ Transport Department was promoted as Assistant on 29.8.1996. The petitioner was promoted as Superintendent for the year 2003-2004 by G.O.(D) No.1135, Home (Transport IV) Department dated 17.11.2004 and the promotion was given effect from 27.2.2004. His pay was also fixed in that cadre on 26.5.2007 with effect from 27.2.2004. 2(a). It is the case of the petitioner that he was eligible for promotion to the next post of Motor Vehicle Inspector (Non-technical) for the year 2007-2008 for which the crucial date was 15.3.2007. It is stated that on 31.5.2007 the first respondent promoted the petitioner’s juniors as Motor Vehicle Inspectors (Non-technical) for the year 2007-08 and orders were issued on 31.5.2007 stating that the petitioner’s promotion was deferred due to pendency of 17(b) charges. 2(b). The writ petition filed in W.P.No.20665 of 2007 challenging the said proceedings of the first respondent dated 31.5.2007 came to be allowed by this Court on 3.7.2007 directing the first respondent to include the name of the petitioner as Motor Vehicle Inspector (Non-technical). The decision of this Court was communicated by the petitioner to the first respondent on 11.7.2007. It is the case of the petitioner that in the meantime, a charge memo was issued against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules on 10.7.2007, which according to the petitioner is ante-dated to defeat the implementation of the order of the Court. 2(c). However, on 24.7.2007 the first respondent implemented the order of the Court by promoting the petitioner as Motor Vehicle Inspector (Non-technical) for 2007-2008 and in spite of the same, no posting order was given and the petitioner issued a notice through his counsel in this regard, for which a reply was received from the first respondent stating that the petitioner’s name was included in the panel but no order was communicated. In the meantime, on 3.8.2007 another order was passed by the first respondent deleting the name of the petitioner from the panel of Superintendent fit for promotion as Motor Vehicle Inspector (Non-technical) for the year 2007-2008. 2(d). According to the petitioner, all these conducts revealed the intention of the respondents to deny the legitimate right of the petitioner. The petitioner’s request to convert the charges framed under rule 17(b) into one under rule 17(a) was rejected by the first respondent on 13.11.2007. The order by which the petitioner’s name was deleted from the panel was challenged in W.P.No.27584 of 2007 and there was an order of interim stay and in spite of it, it was not implemented and ultimately, the writ petition came to be dismissed on 10.12.2007 on the ground that the charges under rule 17(b) are pending. 2(e). It was, challenging the said order, the writ petitioner https://hcservices.ecourts.gov.in/hcservices/ filed W.A. No.115 of 2008. It is stated that in the meantime, to enquire into the charges framed against the petitioner under rule 17 (b), the Regional Transport Authority, Dindigul was appointed as enquiry officer and the petitioner also participated in the enquiry. The enquiry officer found that all the three charges framed against the petitioner are not proved. In the meantime, the writ appeal filed by the petitioner in W.A.No.115 of 2008 came to be allowed on 10.4.2008 and according to the petitioner, based on the judgment of the Division Bench, the charges become baseless and the Division Bench also held that the petitioner is deemed to have been promoted as Motor Vehicle Inspector (Non-technical) with effect from 28.6.2007. 2(f). The decision of the Division Bench was communicated to the first respondent on 13.5.2008, who received the same on 14.5.2008. In the meantime, the impugned memo was served on the petitioner which is challenged on various grounds including that the proceedings are mala fide. It is stated that out of three charges, the first respondent under the impugned memo agreed with the finding of the enquiry officer regarding third charge and in respect of charges 1 and 2, the first respondent intended to differ. 2(g). It is the case of the petitioner that the reasons given for differing from the enquiry officer’s report are without any basis. It is stated that the reason adduced for disagreeing with the enquiry officer’s report was that in the explanation dated 14.8.2007 the petitioner had admitted the charges stating that he has made the endorsement. According to the petitioner, he made such an endorsement on the direction of the Regional Transport Officer, who was warned by the first respondent on 15.3.2007 in the disciplinary proceedings. It is stated that as per the decision of the Division Bench in W.A.Nos.676 and 677 of 2001 dated 29.1.2004, it was held that the endorsement does not amount to route variation and it only provides a parking slot for the buses near Bhavaniamman Koil. 3. The memo is challenged on various grounds that the same is against the findings of the Division Bench in W.A.No.115 of 2008, apart from the judgment of the Division Bench in W.A.Nos.676 and 677 of 2001 dated 29.1.2004 and that the same is arbitrary in the sense that in respect of the Regional Transport Officer, the first respondent by order dated 15.3.2007 simply issued a warning while against the petitioner, based on the endorsement stated to have been made by the petitioner, the proceedings started and therefore, the entire proceedings are mala fide. It is the case of the petitioner that it is a case of no evidence and that the impugned order was passed with predetermined intention to punish the petitioner somehow or other in order to avoid giving effect to the Division Bench judgment. 4. This Court, while admitting the writ petition, granted an order of interim stay on 28.7.2008 in M.P.No.1 of 2008. The https://hcservices.ecourts.gov.in/hcservices/ respondents have filed M.P.No.1 of 2009 to vacate the order of interim stay along with the counter affidavit signed by the Principal Secretary/Transport Commissioner on 8.12.2009. In the said counter affidavit it is stated that to include in the panel of Superintendents eligible for promotion to the post of Motor Vehicle Inspector (Non-technical) as per G.O.Ms.No.885, Home (Trpt) Department dated 29.5.1989 the petitioner should have completed three years as Superintendent as on 15.3.2007, the crucial date for consideration and the charge under 17(b) for major penalty was issued on 7.9.2006 and therefore, the petitioner’s name was not considered for the panel of Superintendents fit for promotion. 4(a). It is stated that the name of the petitioner was included in the panel of Motor Vehicle Inspector (Non-technical) for the year 2007-2008 as per the directions issued by this Court, but the petitioner could not be promoted because this Court held that by including the name of petitioner in the panel for promotion, it does not amount to automatic selection to the promotional post and due to the reason that the petitioner was facing charges warranting major punishment, his name was deleted from the panel. 4(b). It is stated that against the said order, the petitioner filed W.P.No.27584 of 2007 which was dismissed on 10.12.2007. In the meantime, the charge sheet against the petitioner was approved on 5.7.2007 and signed on 10.7.2007 and received by the petitioner on 28.7.2007 through the Regional Transport Officer, Tiruvallur. It is also admitted that the Division Bench in W.A.No.115 of 2008 by judgment dated 10.4.2008 held that there was no motive on the part of the respondents. 4(c). It is stated that the judgment of the Division Bench could not be implemented because it was against the service rules and scheme. Based on the judgment of the Supreme Court in Thiru C.O.Arumugam and others v. State of Tamil Nadu and others [(1989) 2 SCC 1041], it is also stated that the Division Bench had not held that the charges are baseless and there was no direction to drop the proceedings. It is stated that the petitioner made an endorsement suo motu without obtaining approval of the Regional Transport Officer in writing. 4(d). It is stated that the endorsement made providing parking slot in Baghavathi Amman koil is an extension of the existing route and therefore, it is treated as variation of permit conditions. It is also denied that there is no evidence against the petitioner. It is stated that the Regional Transport Officer who is the competent authority has never authorized the petitioner to make endorsement and there is no violation of the principles of natural justice. 5. Subsequently, on behalf of the respondents, an affidavit was filed for withdrawing the counter affidavit dated 8.12.2009 with https://hcservices.ecourts.gov.in/hcservices/ liberty to file a fresh counter affidavit. In view of the same, this Court dismissed the vacate-stay petition as withdrawn, however, stating that the main counter affidavit would form part of the records. This Court also permitted the respondents to file a fresh affidavit assigning proper reasons for necessary orders. The order reads as under: “ The learned counsel for the respondents seeks permission to withdraw the vacate stay petition and the counter affidavit filed in support thereof. He has also made an endorsement to that effect. In view of the endorsement made by the learned counsel for the respondents, the vacate stay petition shall stand dismissed as withdrawn. However, the affidavit will remain on record and the respondents are permitted to file a fresh affidavit for proper reasons. Post for orders on 21.12.2009.” 6. Accordingly, the respondents have filed a fresh counter affidavit dated 18.12.2009. The change made in the counter affidavit appears to be in respect of paragraphs 13 and 14 of the original counter affidavit as elicited above. In paragraph 14 of the original counter affidavit, the respondents have stated that the judgment of the Division Bench is contrary to the rules and scheme of the Government with regard to the individual’s promotion and therefore, the order of the High Court could not be implemented, by referring to the judgment of the Supreme Court in Thiru C.O.Arumugam and others v. State of Tamil Nadu and others [(1989) 2 SCC 1041]. However, in the amended counter affidavit it is stated that the feasibility of making appeal against the judgment in W.A.No.115 of 2008 is under consideration. 7. Mr.Ravishanmugam, learned counsel for the petitioner would submit that the series of orders made by this Court in the writ petitions as well as the writ appeals show that the conduct of the respondent is to fix responsibility on the petitioner somehow or other so as to avoid implementation of the orders and when in respect of the Regional Transport Officer who was the superior officer the same respondents dropped the proceedings on 15.3.2007 only with severe warning, the proceedings in respect of the petitioner were continued which, according to the petitioner, is mala fide. The three charges framed against the petitioner in the charge memo dated 10.7.2007 are as follows: “CHARGE I. The Regional Transport Authority, Dindigul has granted Mini Bus permit from 13.10.2000 to 12.10.2005 in respect of Vehicle No.TN43/5589 authorized to ply in the route from “Thiruvavinankulam Thenkari to Chengalsoolai” with served sector of 3.6 Kms and Unserved sector of 2.9 Kms. https://hcservices.ecourts.gov.in/hcservices/ Thiru E.Pitchaimari, while working as Assistant at Regional Transport Office, Dindigul has made additional endorsement in the Minibus permits as “The vehicle should stop and to be parked at Bhagavathi Ammankoil West Kulakkarai near Roundana Municipality building (Mettupaguthi)”. By this illegal endorsement, the vehicle was permitted to ply with an extension of route to a distance of 0.4 Kms without any authority. Thiru E.Pitchaimari, the concerned Assistant at that time has made this additional endorsement in the permits and the endorsement has not been authorised by the competent authority. The said additional endorsement has been cancelled by the R.T.A. On 01.07.04. Thus, Thiru E.Pitchaimari, formerly Assistant and now Superintendent, in connivance with the permit holder of the mini bus TN43/5589 caused the illegal operation of the said bus on a route not authorised by the permit. CHARGE II. The Regional Transport Authority, Dindigul has granted Minibus permit from 03.11.2000 to 02.11.2005 in respect of Vehicle No.TN27/F.9029 authorised to ply in the route from “Palani Vaiyapurikanmal South to Kollukulam Ranganathan Koil Patham” with served sector of 3.6 Kms and Unserved sector of 5.4 Kms. Thiru E.Pitchaimari, while working as Assistant at Regional Transport Office, Dindigul has made additional endorsement in the Minibus permits as “The vehicle should stop and to be parked at Bhagavathi Amman koil West Kulakkarai near Roundana Municipality building (Mettupaguthi).” By this illegal endorsement, the vehicle was permitted to ply with an extension of route to a distance of 0.6 Kms without any authority. Thiru E.Pitchaimari, the concerned Assistant at that time has made this additional endorsement in the permits and the endorsement has not been authorised by the competent authority. https://hcservices.ecourts.gov.in/hcservices/ Further, by way of making this endorsement, he allowed the operation of the mini bus by extending the served sector of the route as 4.2 Kms which exceeds 4 Kms violating the guidelines prescribed in G.O.Ms.No.1475 Home (Tr.I) Dept. dated 28.10.98. Because of this, the mini bus lost its character and was allowed to be operated as a regular Stage Carriage. The said additional endorsement has been cancelled by the Regional Transport Authority on 01.07.04. Thus, Thiru E.Pitchaimari, formerly Assistant and now Superintendent, in connivance with the permit holder of the minibus-TN 27 F 9029 caused the illegal operation of the said bus not authorised by the permit. CHARGE III By making unauthorized entries in the permit of the minibus TN 27F 9029 the vehicle was allowed to ply 4.2 Kms (3.6+0.6) in the served sector which exceeded the permitted limit of 4 Kms. Thus the character of the permit has been lost and to be taken as a regular Stage Carriage for which higher rate of tax was required to be collected. Seating capacity 25+2 Rate of tax of the regular stage carriage per seat per quarter Rs.500x25=12500 Rate of tax minibus per seat per quarter Rs.200x25= 5000 -------------------- Difference of tax due per quarter Rs. 7500 -------------------- Difference of tax liable for the period (3.11.2000 to 31.12.2000) Rs. 5000 Difference of tax for the period from 1.1.2001 to 30.6.2004 Rs. 105000 at the rate of Rs.7500 per quarter i.e. For 14 quarters --------------- Total Rs. 110000 --------------- Tax with due penalty (Tax + 100% penalty) Rs.2,20,000 https://hcservices.ecourts.gov.in/hcservices/ Therefore, there is a loss of revenue to the tune of Rs.2,20,000/- to the Government by way of making unauthorised endorsement in the permit. Thus he has failed to maintain absolute integrity and devotion to duty thereby contravening the provisions of rule 20(1) and (2) of TNGS conduct Rule 1973 and thus conducted himself in a manner unbecoming of a Government Servant.” 8. The enquiry officer in his report dated 4.3.2008 gave his opinion that all the charges are not proved which is as follows: “ I am of the opinion that the parking facility allowed earlier is withdrawn by Regional Transport Authority, Dindigul vide R.No.:A1/1809/2002 Dt.06.05.2002 it presume that the above additional endorsement made in the permit of the Mini buses TN43 5589 and TN27F 9029 by Thiru E.Pitchaimari is with the knowledge of the Regional Transport Authority, Dindigul and Regional Transport Officer, Dindigul. The High Court, Chennai in its order in W.A.Nos.676 and 677 of 2001 dated 29.1.2004 has observed that the mere endorsement made on the permit cannot amount to route variation. But provide a parking slot for the buses near the Bhagavathi Amman Kovil to and fro without passengers after emptying the passengers at the last stop. Therefore I am of the opinion that the High Court, Chennai it is ordered that the above endorsement made in the permit only for the purpose of parking and not for the operational services.(W.A.No.676 and 677/2001) Hence there is no loss of revenue to Government. Hence all charges framed against Thiru E.Pitchaimari is not proved.” Therefore, the enquiry officer has taken the view that the additional endorsement made in the permit was only with the knowledge of the Regional Transport Authority, Dindigul and the Regional Transport Officer, Dindigul, and it would not amount to route variation and it was for the purpose of parking slot and therefore, there was no loss of revenue. 9. In the impugned memo, the second respondent agreed that the finding of the enquiry officer pertaining to charge No.3, as stated above, which relates to monetary loss stated to have been caused to the Government by the unauthorized endorsement. However, in respect of charge Nos.1 and 2 which relate to the additional endorsement stated to have been made by the petitioner, the second respondent https://hcservices.ecourts.gov.in/hcservices/ proposed that they would vary from the enquiry officer’s report. The reason assigned for differing from enquiry officer’s report is that on perusal of records, it is seen that the Regional Transport Authority, Dindigul in his proceedings in R.No.A1/1809/2002 dated 6.5.2002 cancelled the endorsement made by the petitioner for parking facility. Further, in the explanation dated 14.8.2007, the petitioner specifically admitted that as per the instructions of the Regional Transport Officer, the Personal Assistant had already signed the permit and as an Assistant, the petitioner only carried out his superior’s instructions and this should be taken as the admission by the petitioner. These are the reasons for proceeding against the petitioner under the impugned memo. 10. When the matter came up before the Division Bench earlier, considering the question whether the endorsement providing parking slot in Bhagavathi Amman Koil would amount to extension of the existing route, the Division Bench consisting of V.S.Sirpurkar,J.(as He then was) and F.M.Ibrahim Kalifulla,J. in W.A.Nos.676 and 677 of 2001 by judgment dated 29.1.2004 held as follows: “ 2. Learned counsel for the appellants say that the extension of the route was ultra vires the powers of the authority ordering the same and, therefore, there would be no question of application of principle of acquiescence. When we have seen the order, it is seen that the learned single Judge in both the matters has treated that as a variation of the route permits, the sense that the buses could ply with passengers beyond the route, i.e. Upto Baghavathy Amman Koil. 3. We only clarify that this cannot amount to a route variation. All that has been done by the concerned authority is to provide a parking slot for the buses near the Baghavathy Amman Koil in the sense that there would be no passenger traffic in between the last point of the route and Baghavathy Amman Koil, to and fro. All that the third respondent would be entitled to would be to take their buses (without passengers) after emptying them at the last stop, to Baghavathy Amman Koil for being parked so also to bring the empty buses from there upto that spot. If this is the view taken then, there will no extension of route and hence no necessity to entertain the appeals. With these observations, the appeals are disposed of. CMP.Nos.5914 to 5916 of 2001 are closed.” 11. In fact, the petitioner filed W.P.No.27584 of 2007 against the proceedings of the second respondent dated 3.8.2007 deleting the petitioner’s name from the panel of Superintendents fit for promotion as Motor Vehicle Inspector (Non-technical) for the year 2007-2008 and when the writ petition came to be dismissed, in the writ appeal filed https://hcservices.ecourts.gov.in/hcservices/ by the petitioner in W.A.No.115 of 2008, by judgment dated 10.4.2008, the Division Bench consisting of P.K.Misra,J.(as He then was) and K.K.Sasidharan,J. while allowing the appeal, declared that the petitioner should be deemed to have been promoted as Motor Vehicle Inspector (Non-technical) with effect from 28.6.2007 with all benefits but, with a clarification that in the light of the enquiry officer’s report, it is for the departmental authorities to conclude the departmental proceedings in accordance with law and in fact, the Division Bench has stated that the allowing of the writ appeal does not stand in the way of the departmental authorities to conclude the proceedings in accordance with law. It is true that the Division Bench reiterated the operative portion of the earlier judgment in W.A.Nos.676 and 677 of 2007 which is as follows: “ 9. It may be incidentally pointed out that so far as the earlier charge memo is concerned, the Regional Transport Officer, in his explanation, has stated that with a view to avoid traffic congestion, in consultation with the Police and Transport Department, the said endorsement had been made. On the basis of the said explanation, the proceedings against the Regional Transport Officer have been concluded on 15.3.2007 by issuing a severe warning. In the face of such conclusion of the departmental proceedings in respect of the concerned Regional Transport Officer, the allegation against the present appellant to the effect that he had made certain endorsements without authority obviously appears to be without any basis. As a matter of fact, from the files produced before us, it appears that the Enquiry Officer has also recommended that the charges against the appellant may be dropped. It is also indicated that the endorsement was done with the knowledge of the Regional Transport Authority, Dindigul and Regional Transport Officer, Dindigul. It is further indicated in the enquiry report that there has been no loss of revenue to the Government. As a matter of fact, the Division Bench, in Writ Appeal Nos.676 and 677 of 2001, while dealing with offending endorsement, by judgement dated 29.1.2004, had observed as hereunder: 3. We only clarify that this cannot amount to a route variation. All that has been done by the concerned authority is to provide a parking slot for the buses near the Baghavathy Amman Koil in the sense that there would be no passenger traffic in between the last point of the route and Baghavathy Amman Koil, to and fro. All that the third respondent would be entitled to would be to take their buses (without passengers) after emptying them at the last stop, to Baghavathy Amman Koil for being parked so also to bring the https://hcservices.ecourts.gov.in/hcservices/ empty buses from there upto that spot. 10. However, it is not necessary for us to finally decide the above aspect as it is for the departmental authorities to consider all relevant aspects and decide as to whether they should proceed further in the matter. 11. For the aforesaid reasons, the appeal is allowed and it is directed that the appellant shall be deemed to have been promoted with effect from 28.6.2007 and shall be entitled to all consequential benefits including salary. It is clarified that this order will not stand in the way of the departmental authorities to conclude the departmental proceedings in accordance with law.” 12. Therefore, the Division Bench held that ultimately it is for the departmental authorities to