IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.09.2008 CORAM THE HON'BLE MR. JUSTICE S.MANIKUMAR W.P.No.27639 of 2006 N.Sivakumaran ... Petitioner vs 1)The State of Tamilnadu rep. by the Secretary to Govt., Revenue Department, Fort St. George, Madras-9. 2)The Principal Commissioner and Commissioner of Revenue Administration, Ezhilagam, Chepauk, Madras-5. 3)The Commissioner/Tribunal for Disciplinary Proceedings, Disciplinary Proceedings Office, Marketing Committee Building, Ramanathapuram, Coimbatore. 4)The Secretary, Tamilnadu Public Service Commission, Madras-2. ... Respondents This petition came to be numbered by transfer of O.A.No.173 of 1996 on the file of the Tamil Nadu State Administrative Tribunal praying for the issuance of a Writ of Certiorarified Mandamus to call for the records on the file of the fourth respondent in connection with the order passed by him in his proceedings letter No.3134/DCD-D2/95 dated 3.11.1995 and also on the file of the first respondent in connection with the order passed by him in his proceedings G.O.(1D) No.669 dated 14.12.1995 and quash the same and direct the respondents to reinstate the petitioner in service with all monetary and service benefit. For Petitioner ... Mr.R.Singaravelan for Mr.R.Vijayakumar For Respondents ... Mr.S.Gopinathan Additional Government Pleader O R D E R A Village Administrative Officer removed from service pursuant to departmental enquiry of charges of receipt of illegal gratification and misappropriation has challenged the proceedings of the Tamil Nadu Public Service Commission dated 3.11.1995 and the orders of the Government in G.O.Ms.No.669 dated 14.12.1995 and consequentially for a direction to the respondents to reinstate him in service with service and monetary benefits. 2. Though the petitioner has raised several contentions assailing the impugned orders on the grounds of lack of evidence, non-consideration of his explanation in proper perspective and other grounds, Mr.R.Singaravelan, learned counsel for the petitioner submitted that the appellate authority has failed to consider the statutory appeal with reference to the parameters set out in Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 3. The short facts of the case are as follows: The petitioner was an Administrative Officer. He was placed on defence in DE No.3/88 dated 15.3.1988 by the Disciplinary Proceedings Tribunal for the following charges. "Charge-1: That while he (Applicant) was working as Village Administrative Officer, Potteneri Nallagoundanpatti Village and Veerakkalpudur Village, Mettur Taluk, Salem District, actuated by corrupt motive and in abuse of his (Applicant's) official position and authority, on 14.2.2007 at about 7.00 A.M. When Thiru Mohammed Mohideen, S/o.Shahul Hammed,Asia Grocery Shop Moolakkadai, Kunjandiyur, Mettur Taluk, met him(Applicant) and showed the memo received by him from the Tahsildar, Mettur requesting him to produce a certificate of his non-involvement in any civil/criminal cases and also a certificate to the effect that he had sufficient means to run a Geocery shop, for the purpose of renewal of his licence for dealing in foodgrains and essential commodities and requested him (Applicant) to issue the aforesaid certificates, he (Applicant) after going through the memo, demanded from the said Mohammed Mohideen and illegal gratification of Rs.150/- for issuing the certificates, when the said Mohammed Mohideen informed that he had not brought so much money, he (Applicant) told him that he need not worry since the following two days were holidays, that he could pay the money in the evening and get the certificates. In pursuance of the aforesaid demand and direction, on 15.2.1987 at about 8.30 A.M. He (Applicant) had received the illegal gratification of Rs.150/- from the said Mohammed Mohideen at his (Applicant's) residence at No.36/240 Thermal Plant, V.O.C. Nagar, Thangammapuripattinam, Mettur Dam R.S. and issued him the certificates as requested by him. Charge No.2: That, while he (Applicant) was working as Village Administrative Officer, Pottaneri Nallagoundanpatti Village and Veerakalpudur Village, Mettur Taluk, Salem District actuated by corrupt motive and in abuse of his official position and authority, on 11.2.87 and 12.2.87 with dishonest motive and with intention to obtain wrongful gain to himself (Applicant) he (Applicant) had collected a total sum of Rs.120/- at Rs.15/- each from: 1.Tmt.Venkateswari W/o.Balasubramaniam Puduchampalli, Veerakalpudur Village. 2.Tmt.Mani, W/o.Madesh, Puduchampalli 3.Tmt.Kaveri W/o.Vijayarathinam, Puduchampalli 4.Tmt.Thulasimani, W/o.Arumugham, Puduchampalli 5.Tmt.Kaveri, W/o.Angappan, Puduchampalli 6.Tmt.Pappal, W/o.Sankaran, Karumalaikudal 7.Tmt.Suseela, W/o.Arjunan, Puduchampalli and 8.Tmt.Narasammal, W/o.Palaniappan, Puduchampalli at his (Applicant's) residence at No.36/240, Thermal Plant Road, V.O.C.Nagar, Thangammapuripattinam, Mettur Dam, R.S. for enrolling them under the Labour Insurance-cum- Retirement Benefit Special Scheme and accounted for only Rs.80/- at Rs.10/- each by writing the receipt on 15.2.87 after his (Applicant's arrest in trap case (vide Charge-1 above) and he (Applicant) had misappropriated the balance amount of Rs.40/-. Charge No.3: That, while he (Applicant) was working as Village Administrative Officer, Pottaneri Nallgroundampatti Village and Veerakalpudur Village, Mettur Taluk, Salem District between 11.2.1987 and 14.2.1987, he (Applicant) had demanded and received illegal gratification of a total sum of Rs.125/- from 11 persons at his residence No.36/240 Thermal Plant Road, V.O.C. Nagar Thangammapuripattinam, Mettur Dam R.S. for issuing community and Income Certificates to . Charge No.4:- That, he (Applicant) being a public servant bound by Tamil Nadu Government Servant's Conduct Rules, 1973, and bound to report to the prescribed authority any transaction concerning any movable property exceeding Rs.2000/- in value had failed to report to the prescribed authority the purchase of a Luna Moped Motor Cycle hearing Registration No.TDM/3405 in his (Applicants) name for Rs.4000/- on 21.2.1984 from Tvl.ARAS and Pv.Pv., Salem-7 and thereby he (Applicant) had contravened the provisions under rule 7(2) of the Tamil Nadu Government Servants Conduct Rules 1973." 4. The Tribunal for Disciplinary Proceedings examined as many as 23 witnesses, marked 40 documents and six material objects. The petitioner filed defence exhibits and written statement. After considering the evidence on record, defence and arguments of the petitioner, the Tribunal held that the first charge relating to receipt of illegal gratification as proved. The second charge was not substantiated by prosecution and therefore it was not proved. The third charge was also held not substantiated. Regarding 4th charge, the Tribunal found that there was no proof for the contention of the petitioner that he had sent a communication to the competent authority, informing about the purchase of the vehicle through the office of the Tahsidlar and therefore, held that the 4th charge as proved. The Principal Commissioner and Commissioner of Revenue Administration, agreed with the findings of the Tribunal and arrived at the conclusion that the petitioner was guilty of charges 1 and 4. As the charges related to question of moral turpitude, the disciplinary authority dismissed the petitioner from service. When an appeal was preferred to the State Government, contending inter alia that the order imposing penalty is unsustainable in law, bristles with arbitrariness and improper appreciation of evidence, the matter was referred to the Tamil Nadu Public Service Commission to offer its opinion. The commission on consideration of the entire records and the findings of the disciplinary authority, observed that charge No.1 relating to acceptance of illegal gratification involving moral turpitude is highly grave in nature. The Commission further observed that charge No.4 relates to lapse on the part of the delinquent in observing conduct rules applicable to Government Servants. By observing that it is most undesirable and unhealthy to continue the petitioner in service, the Tamil Nadu Public Service Commission, advised the Government to dismiss the appeal preferred by the petitioner as devoid of merits. After extracting the episode relating to corruption and misconduct in violating the Government Servant Conduct Rules, the Government rejected the appeal preferred by the petitioner as follows: "kDjhuh; kPJ Rkj;jg;gl;l 4 Fw;wr;rhl;LfSs; ifa{l;L bgw;wJ kw;Wk; muR Cspah; elj;ij tpjpfis kPwpaJ bjhlh;ghd Fw;wr;rhl;Lf; xG';F eltof;if jPh;g;ghaj;jhy; rpwpJk; re;njfj;jpw;fplkpd;wp epU:gpf;fg;gl;Ls;sd. fa[{l;L bgw;w Fw;wr;rhl;L eU:gzkhfpa[s;s epiyapy; kDjhuiuj; bjhlh;e;J gzpapy; itj;jpUg;gJ muR eyDf;F cfe;jjy;y/ vdnt. kdjhuUJ nky;KiwaPl;il js;Sgo bra;J Mizapl muRf;Fj; njh;thizak; mwpt[iu tH';FfpwJ. 8. jkpH; ehL muR gzpahsh; njh;thizaj;jpy; fUj;jpid muR Rakhft[k. ftdkhft[k; ghprPyid bra;jJ/ jpU vd;/ rptFkhud;. Kd;dhs; fpuhk eph;thf mYtyUf;F Kjd;ik Mizah; (kw;Wk;) tUtha; eph;thf Mizauhy; mspf;fg;gl;l gzp ePf;fj; jz;lid mjpfg;goahdjy;y vd;Wk;. ,thpd; kDit epuhfhpf;fyhk; vd;Wk;. muir Kot[ bra;J. mt;thnw ,jd; K:yk; MizaplgLfpwJ/" 5. Referring to Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules 1973 and placing reliance on the decision in Director (Marketing), Indian Oil Corporation Limited and another v. Santhosh Kumar reported in 2006 11 SCC 147, the Divisional Authorised Officer, Kothagudam and others v. Madusudanan Rao reported in 2008 2 SCC 617 and M/s.Steel Authority of India Limited v. Sales Tax Officer, Rourkela-1 Circle and others reported in 2008 5 SCC 281, Mr.R.Singaravelan, learned counsel for the petitioner submitted that though the Tribunal for Disciplinary Proceedings have held that charges 2 and 3 as not proved, the Government while rejecting the statutory appeal preferred by the petitioner, came to an erroneous conclusion that all the charges are proved and confirmed the penalty imposed by the disciplinary authority. Referring to paragraph 8 of the appellate authority's order, he further submitted that there is absolutely no indication, (1) as to whether the appellate authority had considered the facts on which the penalty was imposed were properly established and (2) whether the facts established offered sufficient ground for taking action against the petitioner. He further submitted that the appellate authority had considered only one aspect, ie., the quantum of penalty and failed to consider the other important parameters, which are imperative in nature. He further submitted that the appellate authority being the final fact finding authority ought to have examined the entire records and passed a speaking order, setting out the reasons for rejecting the appeal. According to him, omission to examine the grounds raised in the memorandum of appeal, with reference to the statutory provisions amounts to failure to exercise the statutory duties. He further submitted that if the statute mandates a particular thing to be done in a manner, the appellate authority has to do the thing in the same manner and not otherwise. On these grounds, he prayed that the order of the appellate authority be set aside with direction to consider the matter afresh in the light of Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 6. Per contra, Mr.S.Gopinathan, learned Additional Government Pleader made a preliminary objection that the petitioner in the Original Application filed before the Administrative Tribunal has not raised any ground with regard to the alleged infirmity in the appellate authority's order and therefore it is not open to him to raise the same for the first time before this court and therefore, prayed to reject the same as in limini. Without prejudice to the above, inviting the attention of this Court to paragraphs 7 and 8 of the impugned order, he submitted that the appellate authority has carefully considered the memorandum of appeal and reading of the order would indicate that the appellate authority has referred to charges 1 and 4 alone and did not hold that all the charges as proved and therefore, he submitted that the contention of the petitioner alleging non application of mind has to be repelled. 7. Narration of facts in brief, the finding arrived at by the Tribunal for disciplinary proceedings in the impugned order would itself show that the appellate authority has considered as to whether the order was passed on facts which were established and that there was sufficient ground for imposing the penalty of removal from service. He further submitted that while concurring with the views of the disciplinary authority, the appellate authority is not required to write a detailed order and it is suffice that the appellate authority passes an order after due application of mind. 8. Having regard to the serious misconduct of receipt of illegal gratification which stood proved by the Tribunal for Disciplinary Proceedings, the appeal grounds and on careful examination of the opinion offered by the Tamil Nadu Public Service Commission, the appellate authority has passed the order rejecting the appeal. According to the learned Additional Government Pleader for the respondents, the impugned order is perfectly in order and therefore prayed for dismissal of writ petition. Heard the learned counsel for the parties and perused the materials available on record. 9. As this court has been called upon to decide the only question as to whether the appellate authority has disposed of the statutory appeal with reference to Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, it is necessary to extract the rule dealing with the power of the appellate authority. "23. (1) In the case of an appeal against an order imposing any penalty specified in rule 8 or 9, the appellate authority shall consider- (a) whether the facts on which the order was based have been established; (b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate and pass orders (i) confirming, enhancing, reducing, or setting aside 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; provided that- (i) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv), (v)(c), (vi), (vii) and (viii) of rule 8 and an inquiry under sub rule (b) if rule 17 has not already been held in the case, the appellate authority shall, subject to the provisions of sub-rule (c) of rule 17, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of sub-rule (b) of rule 17 and thereafter, on a consideration of the proceedings of such inquiry make such orders as it may deem fit; (ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv), (v)(c), (vi) (vii) and (viii) of rule 8 and an inquiry under sub-rule (b) of rule 17 has already been held in the case, the appellate authority shall make such orders as it may deem fit; and (iii) no other imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of sub-rule (b) of rule 17 of making representation against such enhanced penalty; 2. Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers, for reasons to be recorded, that error or defect was not material and has neither cause in justice to the person concerned nor affected the decision of the case." 10. The issue as to whether three parameters contained in Rule 23(1) are mandatory is no longer res integra. The said issue came up for consideration before this Court in G.Srinivasan v. Government v. Government of Tamil Nadu, represented by the Commissioner and Secretary to Government, Revenue Department and Ors. reported in 1983 (2) MLJ 513. The facts of the reported case are a head Assistant was charged for demand and acceptance of bribe and a Criminal action was initiated under Section 5(1)(a) and 5(2) of the Prevention of Corruption Act, 1947. He was arrested by the Police and lateron, the proceedings initiated under the Prevention of Corruption Act were dropped. It was left to the department, the disciplinary proceedings ordered in relation to acceptance of bribe, resulted in dismissal from service. The Board of Revenue rejected the appeal by stating as follows:- "The Board has examined the appeal petition of Thiru.G.Srinivasan, with connected records. It sees no reason to interfere with the orders of the Collector of Tirunelveli. The appeal is according rejected as devoid of merits." While adjudicating the upon the issue, a Division Bench of this Court, at paragraph 8, held as follows: "8. Coming to the second question as to whether the Board of Revenue has acted in accordance with Rule 23 of the Tamil Nadu Civil. Services (Classification, Control and Appeal) Rules, we feel that the Board of Revenue has not kept in mind the requisites necessary, under Rule 23. The order of the Board of Revenue dismissing the appeal has been extracted above. The order does not give any reason as to why it confirmed the order of dismissal except saying that it did not see any reason to interfere with the order of the Collector. We are of the view that having regard to the language used in Rule 23. the dismissal of the appeal by the Hoard of Revenue is not a proper disposal as contemplated by Rule 23. Rule 23 provides as to what the appellate authority should do while considering the appeal filed by a delinquent officer against the penalty imposed on him. Rule 23(1) gives a mandate to the appellate authority to consider: (a) whether the facts on which the order was passed have been established; (b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate. Thus it is clear: from a perusal of Rule 23 that the appellate authority is enjoined to consider whether the facts on which the order of dismissal was passed had been established and the facts established afford sufficient grounds for taking action and whether the penalty is excessive or adequate . Rule 23 directs the appellate authority to consider certain matters before passing the appellate order. The order of the appellate authority must therefore ex fade show that the matters referred to in Rule 23 have been considered by the appellate authority before it passed its order. In this case, the order of the appellate authority merely says that it sees no reason to interfere with the order of the Collector and it does not indicate that it took all the matters referred to in Rule 23 into consideration before rejecting the appeal. Obviously, the appellate authority the Board of Revenue in this: case, appears to have overlooked the criteria referred to in Rule 23, as otherwise, it would have at least referred to the relevant matters contained in Rule 23 in its order. Dealing with this ground of attack, Mohan, J., has stated that according to the recent trend of opinion, if the appellate authority confirms the order in appeal, the appellate authority need not give reasons. It may be that in a case where there is no statutory provision dealing with the exercise of power by the appellate authority we have to fall back to the general principle as to whether the appellate authority is bound to give reasons for his affirmation of the order of dismissal; but where the power of the appellate authority is circumscribed by a statutory provision such as Rule 23 as in this case, the appellate authority should act within the confines of that rule and he cannot pass an order arbitrarily without considering the matters referred to in Rule 23. We are therefore of the view that the order of the Board of Revenue, dated 4th September, 1976, stands vitiated for violation of Rule 23. On this ground, the order of the Board of Revenue which confirms the order of dismissal passed against the appellant will stand quashed and the Board of Revenue has to pass a fresh order on the appeal filed by the appellant which should be treated as pending." 11. While explaining the word "consider" employed in Rule 27(2) of the Central Civil Services (Classification and Appeal) Rules, 1965, the Supreme Court in R.P.Bhatt v. Union of India reported in AIR 1986 SC 1040, at Paragraphs 4 and 5, observed that, "The word 'consider' in R.27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) Whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) Whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) Whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc, the penalty, or may remit back the case to the authority which imposed the same. R.27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with and if not, whether such non- compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any findings on the crucial question as to whether the findings of the disciplinary authority were unwarranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (2) of R.27(2), viz., whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of R.27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside." 12. Following the R.P.Bhatt's case, the Supreme Court in Ram Chander v. Union of India reported in 1986 (3) SCC 103, held that the Appellate Authority must not only give a hearing to the government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. 13. In Arokiadoss v. The Deputy Commissioner of Police, reported in 1989 Writ L.R. 274, this Court, while dealing with the powers of the appellate authority under Rule 6(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, at Paragraph 4, held as follows: "the order of the appellate authority does not indicate, whether the appellate authority considered the materials on record in the light of Rule 6(1) of the Rules. He should have discussed the relevant evidence and found whether the facts on which the order of the disciplinary authority was based have been established. He should have also considered whether the facts afford sufficient ground for taking disciplinary action and whether the penalty is excessive, adequate or inadequate. As the order of the appellate authority does not show that he has considered the relevant matters prescribed under R.6(1) of the Rules, the order is vitiated." 14. In G.M.(P.W.), Canara Bank v. M.Raja Rao reported in 2001 (II) LLJ 819, the Supreme Court had an occasion to consider as to whether the appellate authority is required to pass a detailed order, while concurring with the decision of the disciplinary authority. The penalty imposed was affirmed by the learned single Judge of the Karnataka High Court. On appeal, the Division bench held that the disciplinary Authority, while agreeing with the report of the Enquiry Officer, is required to give reasons under Banking Regulation and therefore, by observing that there was failure on the part of the appellate authority, set aside the order of removal. Testing the correctness of the Division Bench order, the Apex Court, at Paragraphs 4 and 5, held as follows: "4. ...........The order of the Disciplinary Authority unequivocally indicates that he has gone into the findings of the Enquiring Authority and agreed with the same. When a Disciplinary Authority agrees with the findings and conclusions of the Enquiring Authority, it is not necessary in law to give any detailed reasons as to why he intends to agree with the findings of the Enquiring Authority. It is of course true that in the matter of award of punishing if Disciplinary Authority considers materials other than the materials which had been produced before the EO then the delinquent must be given a notice thereof or else the conclusions of the Disciplinary Authority would get vitiated. 5. So far as the order of the Appellate Authority is concerned, it is undoubtedly true that as provided in the Regulation, the Appellate Authority is required to pass a reasoned order." 15. In Janarthanan Assistant Executive Engineer, Palacode v. The Chief Engineer