IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.24702 of 2008 and M.P.No.1 of 2008 V.Neelamegam ... Petitioners Vs. 1.The Principle Secretary to Government, Environment and Forest Department, Fort St. George, Chennai – 9. 2.The Principle Chief Conservator of Forest, Panagal Building, Saidapet, Chennai – 15. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorari to call for the records in pursuant to the impugned notice issued by the 1st respondent in letter No.13177/V9A/03-11 dated 22.07.2008 and quash the same and pass such further orders. For Petitioner : Mr.S.M.Subramaniam For Respondents : Mr.P.Sathish, GA (F) ORDER The petitioner, V.Neelamegam, while working as Forester in Marandahalli Section, Palacode Range in the year 1988 and 1989, committed certain irregularities, like demanding a sum of Rs.1,000/- as illegal gratification, after detecting 5 head loads of bamboos in the house of Muttaikannan @ Muniappan. Therefore, the petitioner demanded a sum of Rs.1,000/- to release him without prosecution and subsequently, directed to pay a sum of Rs.200/-. The allegation is that he said to have received the illegal gratification of Rs.800/- on 05.12.88 at his residence in Marandahalli from one Muttaikannan https://hcservices.ecourts.gov.in/hcservices/ and out of that amount, he remitted a sum of Rs.50/- in the name of Muttaikannan in a manipulated forest case and eventually he derived a pecuniary benefit of Rs.750/- in the above process. Based on the above allegations, he was charged indicating that he has received weekly mamool of Rs.70/- for about six months from one Krishnan for not taking action against him for his illicit dealing with bamboos and, thereby, violated Rule 20 of Tamil Nadu Government Servant Conduct Rules, 1973. 2. The 3rd charge is to the effect that on 01.04.1989 at about 7.00 hrs. at Vellisanthai Checkpost, Forest Guards secured one Tvl.Vel and Venkatesan, while transporting bamboos in the top of a bus owned by Good Luck Bus Service and seized bamboos and demanded a sum of Rs.1,000/- for letting them free and thereby, received illegal gratification of Rs.600/- from the above said person and out of which the petitioner remitted only a sum of Rs.60/- in a fabricated O.R.No.43/88-89 and thus derived a pecuniary benefit of Rs.540/-. 3. The 4th charge also says that the Accused Officer-I secured one Krishnan and Madesh, while transporting 500 bamboos at 6.20 am at Vellisanthai check post along with Accused Officers 3, 4 and 5 and threatened them and made a demand and accepted Rs.500/- as illegal gratification from Krishnan, out of which he remitted a sum of Rs.250/- as compounding fees on 19.05.89 and thus derived a pecuniary benefit of Rs.250/- with the connivance of other Accused Officers. 4. After issuance of the charge memo, a charge sheet was issued on 11.07.1995 and the Tribunal for disciplinary proceedings conducted a detailed enquiry and finally came to the conclusion that the charges 1, 3 and 4 were held proved, while charge No.2 was held unproved. On receipt of the notice and the report, the petitioner submitted his explanation on 04.04.2002, but, not being satisfied with the said explanation, the 2nd respondent, Principle Chief Conservator of Forest, Chennai, passed final orders on 17.12.2002 imposing a punishment of stoppage of increment for one year without cumulative effect. After the conclusion of disciplinary proceedings on 17.02.2002 and after a lapse of 6 years, the 1st respondent issued the impugned notice in proceedings dated 22.07.2008, stating that the punishment already imposed by proceedings dated 17.12.2002 is not sufficient and, therefore, the impugned suo-moto notice proposed to impose the punishment of removal from service. Challenging the said suo-moto notice, the petitioner has filed the present writ petition. 5. The prime contention raised by the learned counsel appearing for the petitioner, Mr.S.M.Subramaniam is that, after conclusion of disciplinary proceedings after a delay of 6 years, the 1st respondent cannot exercise the suo-moto power for inflicting an enhanced punishment on the petitioner, that too, by clearly indicating the proposed punishment of removal from service. When the notice was issued with pre-meditation, it is evident that the 1st respondent has https://hcservices.ecourts.gov.in/hcservices/ clearly made up his mind. Therefore, it was contended that a post of decisional hearing likely to be given by the 1st respondent after issuing the suo-moto notice, indicating his mind to impose the punishment of removal would be nothing but an illusory exercise and thus, is violative of principles of natural justice. 6. In support of his submission, he relied upon a judgement of this Court reported in 2009 (1) CTC 529 (N.Bose Vs. The State of Tamil Nadu and another), wherein, this Court dealt with inordinate delay of 6 years in exercising suo-moto power to enhance punishment and also another judgment of the Apex Court reported in 2007 (1) CTC 844 (Siemens Ltd. Vs. State of Maharashtra and others), wherein it has been held that once a decision is taken by an authority exercising suo-moto power indicating his tentative punishment, there is a tendency to uphold it and a representation may not yield any fruitful purpose. On that basis, prayed for quashing the impugned order by allowing the present writ petition. 7. Per contra, learned counsel appearing for the respondents submits that the petitioner has given room for serious misbehaviour by demanding and accepting mamool for smuggling bamboos illegally. Therefore, the disciplinary proceedings were initiated by the 1st respondent in his letter dated 26.10.93. The Tribunal for Disciplinary Proceedings framed 4 charges against the petitioner in case No.DE No.45/94, dated 11.07.95 and conducted detailed enquiry and, thereafter, the Tribunal for disciplinary proceedings, in its report, has given its finding that 3 charges were proved and one charge remain unproved. Thereafter, the 2nd respondent, after examining the charges, along with findings of the Tribunal for disciplinary proceedings and further explanation of the petitioner on the basis of the findings of the Tribunal, awarded the punishment of postponement of increment for one year without cumulative effect in Proceedings No.T1/45082/97, dated 17.12.2002. Since the said punishment imposed by the 2nd respondent was not commensurate with the charges, the 1st respondent, after examining the charges, findings of the Tribunal for disciplinary proceedings and further explanation of the petitioner on the findings of the Tribunal along with relevant records, decided to take up a suo-moto revision under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) and proposed to award a punishment of removal from service under Rule 8 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules to the petitioner for the proven charges. Therefore, the 1st respondent issued a show cause notice to the petitioner on the proposed punishment in his impugned notice dated 22.07.2008. After receiving the above said notice, the petitioner in his letter dated 30.09.2008 requested 30 more days time to give his explanation. Accordingly, the request of the petitioner was considered favourably by granting 30 days. But, the petitioner without giving his explanation to the 1st respondent, has wrongly approached this Court. Therefore, the impugned order issued exercising the power under Rule 36 of the Tamil Nadu Civil https://hcservices.ecourts.gov.in/hcservices/ Services (Discipline and Appeal) Rules proposing to award a punishment of removal from service under Rule 8 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules to the petitioner for the proven charges, may not be interfered with by this Court and, on that basis, prayed for dismissal of the writ petition. 8. Heard the learned counsel appearing on either side and perused the materials available on record. 9. For the alleged irregularities, 4 charges were framed against the petitioner. The Tribunal for disciplinary proceedings, after framing charges, including charges relating to demanding and accepting illegal gratification, conducted detailed enquiry and finally found the petitioner guilty of three charges. Therefore, the 2nd respondent, after examining the charges and the findings of the Tribunal for disciplinary proceedings and the explanation offered by the petitioner on the findings of the Tribunal, finally awarded the punishment of postponement of increment for one year without cumulative effect in Proceedings No.T1/45082/97, dated 17.12.2002. The 1st respondent, having seen that the punishment awarded to petitioner by the 2nd respondent, being not commensurate with the charges found proven by the Tribunal for disciplinary proceedings and as he has empowered to take suo-moto revision under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, proposed to award a punishment of removal from service under Rule 8 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules to the petitioner for the proven charges. Therefore, the 1st respondent issued show cause notice by exercising suo-moto power to the petitioner on the proposed punishment. 10. Now, let me see, whether the exercise of suo-moto power, after a period of 6 years, is legally viable or not. A similar issue came up before this Court in the case of N.Bose Vs. The State of Tamil Nadu and antoher reported in 2009 (1) CTC 529, wherein a person holding additional charge of Principal of District Institute of Education and Training, was charged under Rule 17(a) on allegation of lapse in procedure in selection of students. On enquiry, considering the said lapse as a minor lapse committed due to oversight, he was issued with warning with further condition that the same shall not be repeated in future. Subsequently, the petitioner was included in the panel. However, when promotion order was issued, the petitioner's name was not found on the ground of issuance of the impugned order, wherein the punishment of warning was enhanced by modification to that of withholding increment for one year without cumulative effect in exercise of powers conferred under Rule 36 of Tamil Nadu Civil Services (Discipline and Appeal) Rules. Since the said order was passed by exercising suo-moto power under Rule 36, after a lapse of about 7 years, the same was challenged before this Court under Article 226 of the Constitution of India and this Court held that exercising suo-moto power under Rule 36, after a lapse of 7 years, is https://hcservices.ecourts.gov.in/hcservices/ found unreasonable and, consequently, the order of punishment enhancing punishment from warning to that of withholding increment for one year without cumulative effect was set aside. Relying on the same principle, learned counsel appearing for the petitioner Mr.S.M.Subramaniam, pressed into the service the above ratio on the ground that the disciplinary authority on the findings of the Tribunal for disciplinary proceedings found the petitioner guilty of 3 charges and imposed postponement of increment for one year without cumulative effect and after a lapse of 6 years, the 1st respondent should not have imposed punishment by exercising power under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, that too, with a clear indication that the petitioner would be removed from service under Rule 8 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 11. A bare perusal of the impugned order issued by the 1st respondent by exercising suo-moto power under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, indicating about the punishment of removal from service, clearly indicates that the 1st respondent has made up his mind to impose the punishment of removal of the petitioner from service. Therefore, as rightly held by the Apex Court in Siemens Ltd's case (supra), stating that the Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the respondent herein and a post decisional hearing given by the High Court was illusory, is squarely applicable to the present case. 12. Further in another case of K.I.Shephard & Ors., etc. Etc. v. Union of India & Ors., AIR 1988 SC 686, the Apex Court has held thus: "...It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose." In the light of the above ratio, a bare perusal of the impugned order issued by the 1st respondent clearly indicates that the 1st respondent has already made up his mind for inflicting the punishment of removal of the petitioner from the service. Therefore, the same is not legally sustainable and accordingly, this Court is of the considered opinion that on both ground of delay of 6 years in exercising the suo-moto power under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, proposing to impose the punishment of removal from service, the same does not stand to any good reason. Accordingly, the impugned order passed by the 1st https://hcservices.ecourts.gov.in/hcservices/ respondent is set aside by allowing the present writ petition. No Costs. Consequently, connected M.P.No.1 of 2008 is closed. Sd/- Assistant Registrar / True Copy / Sub Assistant Registrar rkm To 1. The Principle Secretary to Government, Environment and Forest Department, Fort St. George, Chennai – 9. 2. The Principle Chief Conservator of Forest, Panagal Building, Saidapet, Chennai – 15. +1 CC to M/s.S.M.Subramaniam, Advocate Sr.No.23448 W.P.No.24702/2008 AKR(CO) DRL : 16/04/2010 https://hcservices.ecourts.gov.in/hcservices/