IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 24.09.2010 CORAM THE HONOURABLE MR.JUSTICE D. HARIPARANTHAMAN W.P. No.40720 of 2006 (O.A.No.4589 of 2000) Reginald Indira ... Petitioner -vs- 1.District Elementary Educational Officer Tirunelveli District Tirunelveli. 2.The Assistant Elementary Educational Officer Kalakadu Union, Kalakadu Post Tirunelveli District. ... Respondents Prayer: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A. No.4589 of 2000 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the proceedings of the second respondent in Na.Ka.No.1349/A2/98 dated 04.01.1999 to quash the same and to direct the respondent to fix the pay and other benefits due to applicant with retrospective benefits. For Petitioner : Mr. V.Selvaraj For Respondents : Mr. K.Balakrishnan Additional Government Pleader O R D E R The Original Application in O.A. No.4589 of 2000 filed before the Tamil Nadu Administrative Tribunal is the present Writ Petition. 2. The petitioner was the Secondary Grade Teacher. He was issued a charge memo dated 15.10.1998 under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules by the second respondent. The second respondent passed the impugned order dated 04.01.1999 in Na.Ka.No.1349/A2/98 imposing the punishment of stoppage of increment for a period of one year with cumulative effect. Thereafter, the petitioner submitted her explanation dated 11.01.1999 denying the charges. Then, the petitioner filed O.A.No.4589 of 2000 (W.P.No.40720 of 2006) to quash the aforesaid order of the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 3.The learned counsel for the petitioner has made the following submissions: i)The second respondent is not the competent authority to initiate the disciplinary action, even under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, in view of the Rule 14a(1) of the Rules. ii) Having issued charge sheet under Rule 17(a), the punishment of stoppage of increment with cumulative effect could not be imposed, without following the procedure contemplated under Rule 17(b), in view of the second proviso to Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, iii)On merits, it is submitted by the learned counsel for the petitioner that the petitioner was not well and therefore, she was not able to attend the independence day celebration. The petitioner was also not able to take enumeration of the students, due to her illness. It is further submitted that three charges were framed against the petitioner. 4.On the other hand, the learned Additional Government Pleader has submitted that there is no infirmity in the impugned order passed by the second respondent and the writ petition deserves to be dismissed. 5.Heard the submissions made on either side. 6.The allegations made in the charge memo are as follows: 1/15/08/1998 md;W eilbgw;w Rje;jpu jpdtpHhtpy; fye;J bfhs;shik/ 2/khzth;fs; nrh;f;iff;fhd Fof;fzf;F vLf;fhik 3/jiyik Mrphpiaapd; Mizia epiwntw;whJ cjhrPdg;gLj;Jjy;/ According to the petitioner, the petitioner's explanation was submitted subsequent to the impugned order stating that she was not well and therefore, she was not able to do the work of enumeration of the students and was also not able to participate in the independence day celebration. Regarding the third charge, the submission of the learned counsel for the petitioner is that the charge is vague. In my view, the submission of the learned counsel for the petitioner is well founded that the third charge is vague and without any details. Regarding the charges 1 and 2, in view of the explanation given by the petitioner that she was not well, the second respondent is not justified in imposing the punishment. Hence, the punishment of impugned order is liable to be interfered on merits also. 7.Furthermore, as rightly contended by the learned counsel for the petitioner that the second respondent, who is neither an immediate superior officer of the State Services nor the appointing authority, has no power to initiate the disciplinary action against the petitioner under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, in view of the rule 14a(1) of the Rules. Rule 14(a)(1) is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ 14(a)(1) The Authority which may impose suspension referred to in Rule 17(e) or penalties of -- (i)Censure, (ii)Fine, (iii)Withholding of increments, and (iv)(a) recovery from pay of the whole or part of any pecuniary loss caused to the State Government or the Central Government or to a local body by negligence or breach of orders, or (b)recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld, where such an order cannot be given effect to, on a member of a subordinate service shall be his immediate superior officer of the State Services or, where the appointing authority for such members is an Officer of the Subordinate Services, such officer or any higher authority; Provided that in respect of the members of Subordinate Services working in a medical institution in the City or Muffassal, the Authority Competent to impose the penalty of withholding of increments shall be the head of that institution in cases where he is not below the rank of a Civil Surgeon and the District Medical Officer concerned in other cases, subject to the condition that where such head of the institution or District Medical Officer, as the case may be, is not the Appointing Authority, he shall, before, imposing that penalty, report the matter to such Authority and obtain its prior sanction; Provided further that in respect of the members of Subordinate Services working in the National Cadet Corps Units, the Authority Competent to impose the penalties referred to in this clause shall be the Officer Commanding the Units concerned. " The second respondent is neither the immediate superior officer of the petitioner nor the appointing authority. The immediate superior officer of the petitioner is the District Educational Officer. The charge memo itself is without authority and therefore, the punishment order is liable to be set aside. 8.The other contention of the learned counsel for the petitioner is also well founded. While the charge sheet was issued under Rule 17 (a), the second respondent had chosen to impose the punishment of stoppage of increment with cumulative effect. Even if the charge memo was issued by the competent authority under Rule 17(a), the punishment of stoppage of increment with cumulative effect could be issued only after following the procedure under Rule 17(b), in view https://hcservices.ecourts.gov.in/hcservices/ of the second proviso to Rule 17(a). Rule 17(a) is extracted hereunder: "17.(a) In every case where it is proposed to impose on a member of a service or a person holding a civil post under the State any of the penalties specified in items (i), (ii), (iii), (v) and (ix) in rule 8 or in rule 9, he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the penalty is passed; Provided that the requirements of this sub-rule shall not apply where it is proposed to impose on a member of a service any of the penalties aforesaid on the basis of facts which have led to his conviction by a Court martial or where the officer concerned has absconded or where it is for other reason impracticable to communicate with him; Provided further that, in every case where it is proposed, after considering the representation, if any, made by the Government servant, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay without cumulative effect for a period exceeding three years or to withhold increment of pay with cumulative effect for any period, the procedure laid down in sub- rule(b) shall be followed before making any order imposing on the Government servant any such penalty." Admittedly, the procedure under Rule 17(b) is not followed in the present case. Hence, the punishment order is liable to be quashed. 9.For the above said reasons, the impugned order passed by the second respondent shall stand quashed and the writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kj https://hcservices.ecourts.gov.in/hcservices/ To 1.The District Elementary Educational Officer Tirunelveli District Tirunelveli. 2.The Assistant Elementary Educational Officer Kalakadu Union, Kalakadu Post Tirunelveli District. W.P. No.40720 of 2006 (O.A.No.4589 of 2000) KSJ(CO) RVL 14.10.2010 https://hcservices.ecourts.gov.in/hcservices/