IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:1.7.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.15979, 21790, 24515 of 2007 and 3478 of 2008 Ilangovan .. Petitioner in WP:15979/2007 Ganesan .. Petitioner in WP:21790/2007 Hiriyan .. Petitioner in WP:24515/2007 M.P.Kandasamy .. Petitioner in WP:3478/2008 Vs 1. The District Collector Nilgiris District, Ooty. .. 1st respondent in WP:15979, 21790 and 24515 of 2007 2. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk Chennai – 5. .. 2nd respondent in WP:15979, 24515 of 2007 and 3478 of 2008 3. The Joint Commissioner (Revenue Administration) Chepauk, Chennai – 5. .. 2nd respondent in WP:21790/2007 4. The District Collector Erode District, Erode. .. 1st respondent in WP:3478/2008 https://hcservices.ecourts.gov.in/hcservices/ 5. The Joint Commissioner (Revenue Administration) Revenue Administration Disaster Management and Mitigation Department Ezhilagam, Chennai – 600 005. .. 3rd respondent in WP:3478/2008 PRAYER in W.P.No.15979 of 2007: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the respondents in connection with the impugned orders passed by respondents 1 and 2 in Na.Ka.No.A2/Th.Mu.Vu (PO)M/1/99, dated 29.11.2005 and Na.Ka.No.Pani3 (3)/106557/2005, dated 10.4.2007 and quash the same and further direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits. PRAYER in W.P.Nos.21790, 24515 of 2007: Petitions under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the respondents in connection with the impugned orders passed by respondents 1 and 2 in Na.Ka.No.A2/Th.Mu.Vu (PO)M/1/99, dated 29.11.2005 and Na.Ka.No.Pani3 (3)/106557/2005, dated 14.3.2007 and quash the same and further direct the respondents to reinstate the petitioners into service and grant them all consequential service and monetary benefits. PRAYER in W.P.No. 3478 of 2008: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the impugned orders in Na.Ka.No.Pani 5(3) 5681/2006, dated 2.11.2007 on the file of the third respondent and Na.Ka.71987/2005/E1, dated 24.11.2006 on the file of the first respondent, to quash the same and to direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits. For Petitioners : Mr.K.Venkataramani, Sr.Advocate in WP:15979, 21790 for Mr.M.Muthappan and 24515/2007 For Petitioner : Mr.S.Doraisamy in WP:3478/2008 For Respondents : Mr.V.Jayaprakash Narayanan Additional Govt. Pleader ORDER The brief facts of the case necessary to dispose of these writ petitions are as under: 1.1. The petitioners were all appointed as Village https://hcservices.ecourts.gov.in/hcservices/ Administrative Officers in the Nilgiris District. While serving as Village Administrative Officers in the said district between various periods in 1997 to 2002, there have been allegations that the petitioners have recommended for financial assistance in respect of various individuals based on bogus certificates. The said loans were intended for destitutes. The Government issued G.O.No.844, Revenue Department, dated 28.8.1996 issuing certain guidelines for extending financial assistance to the poor and downtrodden people. 1.2. It is stated that based on the preliminary enquiry conducted by examining number of witnesses, the petitioners were proceeded with departmentally under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules by the District Collector, Nilgiris District by issuing charge memos on 29.3.2000. The charges in respect of the petitioner in W.P.No.15979 of 2007 are as follows: (i)that while he was working as Village Administrative Officer between 1.4.1998 and 31.3.1999, he has recommended ten persons for issuance of financial assistance without referring to the bogus death certificates and without conducting enquiry, thereby causing a loss to the extent of ` 75,000/-, at the rate of ` 7,500/- each; (ii)that in spite of the Government order dated 28.8.1996, he has recommended against the guidelines causing loss to the extent of ` 30,000/-; (iii)that he has recommended loan to four families living above poverty line in violation of the instructions of the Government and thereby caused loss to the Government to the tune of ` 30,000/-; (iv)that even though as per the guidelines, at the time of the death of the person leading the family he should have been earning income, without making proper enquiry, he has recommended in respect of one family and thus caused loss to the extent of ` 7,500/-; (v)that in not recommending to the eligible person but based on a bogus certificate recommending to one person he has caused loss to the extent of ` 7,500/-; and (vi)that he has failed to act as Village Administrative Officer in a proper manner, especially when his recommendation was the basis for sanction of financial assistance. 1.3. The charges framed in respect of the petitioner in W.P.No.21790 of 2007 are as follows: (i)that while working as Village Administrative Officer in Devala-I Village between 1.4.1998 and 31.3.1999, he has recommended one person for financial assistance https://hcservices.ecourts.gov.in/hcservices/ without properly referring to the documents and without conducting enquiry causing loss to the extent of ` 7,500/-; (ii)that by recommending a person against the guidelines stipulated in the Government Order dated 28.8.1996, he has caused loss to the Government to the tune of ` 7,500/-; (iii)that in respect of one beneficiary, based on the bogus death certificate and without conducting proper enquiry, he has recommended financial assistance thereby causing loss to the tune of ` 7,500/-; and (iv)that the beneficial schemes were misused, especially when his recommendation was the basis for grant of sanction. 1.4. Likewise, in respect of the petitioner in W.P.No.24515 of 2007 the following charges were framed: (i)that while working as a Village Administrative Officer in Gudalur between 1.4.1998 and 31.3.1999, he has recommended 52 persons as beneficiaries based on the bogus certificates at the rate of ` 7,500/- to each of the persons causing loss to the extent of ` 3,90,000/-; (ii)that against the guidelines issued under the Government Order dated 28.8.1996, without verifying as to whether there is male legal heir to the deceased persons, in respect of 14 persons he has recommended financial assistance causing loss to the extent of ` 1,05,000/-; (iii)that in respect of recommending financial aid improperly to one family on the basis that they are living below poverty line, he has caused loss to the extent of ` 7,500/-; (iv)that as per the scheme, at the time of the death of the person leading the family he must have been a person earning for the benefit of the family and ignoring the said guideline by recommending five individuals, he has caused loss to the extent of ` 37,500/-; (v)that without conducting proper enquiry in respect of four persons by recommending financial aid he has caused loss to the extent of ` 30,000/-; https://hcservices.ecourts.gov.in/hcservices/ (vi)that in respect of two persons he has recommended for financial assistance without making enquiry on the basis of the bogus certificates causing loss to the extent of ` 15,000/-; and (vii)that by his conduct he has prevented the benefit of the scheme from reaching the proper persons, especially when his recommendation was the basis for the grant. 1.5. In respect of the petitioner in W.P.No.3478 of 2008, the following charges were framed: (i)that when the petitioner was working as Village Administrative Officer, Gudalur between 1.4.1998 and 31.3.1999, in respect of 24 persons he has recommended financial aid based on the bogus certificates thereby causing loss to the Government to the extent of ` 1,80,000/-; (ii)that against the guidelines in the Government Order dated 28.8.1996 by recommending a family for the purpose of financial aid he has caused loss to the extent of ` 7,500/-; (iii)that when as per the scheme while a person who died must be in a position of earning at the time of his death, without properly conducting enquiry while recommending in respect of two families, he has caused loss to the extent of ` 15,000/-; (iv)that by not recommending the persons who are eligible and recommending five ineligible persons he has caused loss to the extent of ` 37,500/-; (v)that he has recommended two persons for the benefits on the basis of bogus certificates causing loss to the extent of ` 15,000/-; and (vi)that by his conduct he has not worked for reaching of the benefits of the scheme to the persons intended, especially when his recommendation was the basis for the assistance granted. 1.6. In respect of those charges framed against each of the petitioners along with various annexures referred thereto, the petitioners have submitted their explanations denying the charges. 1.7. Pending disciplinary proceedings, by virtue of the circular issued by the Principal Commissioner and Commissioner of Revenue Administration, Chennai dated 8.5.1997, the Tahsildar, Gudalur has https://hcservices.ecourts.gov.in/hcservices/ issued a notice on 10.1.2001 directing the petitioners in these writ petitions, apart from the Revenue Inspectors, to deposit 50% of the loss in respect of the Village Administrative Officers and 30% of loss in respect of the Revenue Inspectors, specifically stating that based on telephonic instruction of the District Collector and District Revenue Officer and as per the direction of the Commissioner of Revenue Administration, it is directed to deposit the said amount for relieving them from the above said charges. According to the petitioners, it was based on such direction, they have deposited the amount, of course without prejudice to their defence which they have taken by way of explanations. 1.8. It is stated that the District Collector has appointed an Enquiry Officer, viz., The District Supply Officer, Uthagamandalam, to conduct oral enquiry against the petitioners. The Enquiry Officer directed the petitioners to be present for an oral enquiry on 11.11.2002 and it is the case of the petitioners that during the time of the enquiry no witnesses were examined on the side of the respondents. It is stated that only statements were obtained by the Enquiry Officer from the petitioners and there was no opportunity to cross-examine the statements of the official witnesses which were recorded by the Enquiry Officer. Ultimately, the Enquiry Officer, by his report dated 25.2.2002 has recommended that all charges are proved. 1.9. The report of the Enquiry Officer was served to the petitioners for further representation and the petitioners have also submitted their further representations and appeared for personal hearing. However, after lapse of three years, the first respondent passed orders on 29.11.2005 in respect of the petitioners in W.P.No.15979, 21790 and 24515 of 2007 and on 24.11.2006 in respect of the petitioner in W.P.No.3478 of 2008 agreeing with the findings of the Enquiry Officer and imposed punishment of dismissal from service. The petitioners have preferred appeals against the punishment to the second respondent, who has straight-away rejected the appeals of the petitioners in W.P.No.15979, 21790 and 24515 of 2007 on 14.3.2007 and the same was communicated to them on 18.4.2007. However, in respect of the petitioner in W.P.No.3478 of 2008, the third respondent has rejected the appeal by order dated 2.11.2007, which was served on the petitioner on 31.1.2008. 1.10. The petitioners have challenged the impugned orders of the respondents on various grounds, including: (i)that the order of the first respondent is a non speaking order; (ii)that the second respondent, being the Appellate Authority, has not applied his mind; (iii)that the disciplinary proceeding was not properly conducted and no prosecution witnesses were examined to https://hcservices.ecourts.gov.in/hcservices/ prove the charges against the petitioners; (iv)that it is not the allegation of any pecuniary gain made by the petitioners in recommending the financial assistance; (v)that even in respect of the charges, as per the circular issued by the second respondent and on condition that the charges will be dropped, the petitioners were directed to deposit 50% of the loss which has been caused, which has been paid and in spite of the same the disciplinary proceeding has been proceeded with and orders of dismissal have been passed; and (vi)that the petitioners have in fact followed the guidelines prescribed by the government in respect of issuance of the financial aid to the downtrodden people. 2.1. In the counter affidavit filed by the first respondent, while the facts are not disputed, it is stated that on the basis of the report of the Revenue Divisional Officer, Gudalur, the District Collector has framed charges against the Special Tahsildar (Distress Relief Scheme), Revenue Inspectors, Gudalur and Devarsholai and eight Village Administrative Officers, including the petitioners, for recommending financial assistance under the Distress Relief Scheme to ineligible persons and therefore, the charges were framed against them. It is stated that by depositing 50% of the amount, the petitioners have in effect accepted the charges. It is stated that the Village Administrative Officers being the root level officers, their recommendation is the basis for the purpose of grant of financial assistance. 2.2. It is stated that after the explanation was submitted, the Enquiry Officer appointed conducted enquiry and based on the report of the Enquiry Officer submitted to the first respondent and on the basis of the records, the first respondent has passed the impugned orders dismissing the petitioners and the appeal was also rejected by the Appellate Authority after referring to various records. 3.1. The main contention of Mr.K.Venkataramani, learned Senior Counsel for the petitioners in W.P.No.15979, 21790 and 24515 of 2007 and Mr.S.Doraisamy, learned counsel for the petitioner in W.P.No.3478 of 2008 is that the deposit of 50% has been made by all the petitioners, even though without prejudice to their rights, on a specific assurance that they would be relieved of the charges. He would rely upon the notice issued by the Tahsildar dated 10.1.2001, who, in his turn, has issued direction to pay 50% on the basis of the circular of the second respondent dated 8.5.1997. https://hcservices.ecourts.gov.in/hcservices/ 3.2. The learned counsel for the petitioners would also submit that the disciplinary proceedings were not conducted as per the guidelines issued by the Hon'ble Supreme Court in State of Uttaranchal and others v. Kharak Singh, [2008] 8 SCC 236, in the sense that the respondents ought to have produced witnesses for proving the individual charges against the petitioners giving opportunity to the petitioners to cross-examine the witnesses and such procedure having not been followed, the impugned orders of punishment are liable to be set aside. 4. On the other hand, it is the contention of the learned Additional Government Pleader appearing for the respondents that the mere fact that 50% of the loss caused by each of the petitioners has been remitted by them shows that they have admitted the correctness of the charges and there is no prohibition for the department from proceeding with the charges. 5. For appreciating the arguments of the learned counsel for the petitioners, it is relevant to extract the proceedings of the second respondent dated 8.5.1997, which is in the form of a circular issued by the second respondent to all Subordinate Officers by way of instructions: "Copy of Circular Roc.No.D4/107531/95 from the Principal Commissioner and Commissioner of Revenue Admn. Chepauk, Chennai.5 (dt. 8.5.'97) Sub: Public Service – Revenue Department – Punishment inflicted by the Collector – Unjustice instructions issued. While examining an appeal preferred by a retired Tahsildar against the orders of recovery passed by the Collector for the loss caused to Government on account of non-collection of bid amount and for certain lapses in the conduct of fishery rental sale in public auction, I have noticed that the Tahsildar, alone was held fully responsible for the loss caused to Government. 2. In the case cited above, due to negligence and lack of devotion to duty or perform the Statutory function of conducting sale as per the instructions of the Government, the Government had incurred a loss of Revenue. Therefore, the Collector had initiated action against all concerned (i.e.) the Tahsildar, Zonal Deputy Tahsildar, Revenue Inspector and Village Administrative Officer under rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) and after observing all the formalities, the Collector held the Tahsildar alone as responsible for the loss and ordered to recover the https://hcservices.ecourts.gov.in/hcservices/ entire amount of loss caused to Government and dropped action against the other officials. 3. It is pointed out that holding the Tahsildar alone responsible for the lapses is neither correct nor fair. It is the first and foremost duty of the Village Administrative Officer to collect the public auction sale amount. Even without the instruction of the Tahsildar, he ought to have collected the sale amount on the day itself and remitted the amount on the very next day. He should not strike his bounden primary duty. The Revenue Inspector and Zonal Deputy Tahsildar are also equally responsible for anything and everything in their jurisdiction. The Tahsildar alone cannot be held to be guilty. As all of them (i.e. Village Administrative Officer, Revenue Inspector, Zonal Deputy Tahsildar and Tahsildar) are also responsible for the loss of Revenue to Government, they deserve their due share in making good the loss of revenue sustained by Government. Therefore, the loss of revenue should be recovered in proportionate to the gravity of offence committed by them as given below:- Village Administrative Officer : 50% Revenue Inspector : 30% Deputy Tahsildars : 15% and Tahsildars : 5% 4. Whenever, disciplinary action initiated against the officials for this kind of lapses, responsibility should be fixed on each official and proportionate amount of loss sustained by the Government should be recovered from each official in the proportion indicated above. 5. These instructions should be followed scrupulously in future. 6. The receipt of this letter may be acknowledged early." 6. A reference to the circular shows that it was issued by the second respondent in the circumstance that when a Tahsildar was imposed with the punishment of recovery in respect of the loss caused to the Government on account of non collection of bid amount. Taking note of the fact that the Tahsildar alone was held responsible for the loss caused to the Government, the second respondent in the circular stated that it is not correct to make the Tahsildar alone liable and therefore, if loss is caused, the loss has to be proportionately borne by the various officers, viz., the Village Administrative Officer is to be imposed with 50% of the liability, https://hcservices.ecourts.gov.in/hcservices/ while the Revenue Inspector with 30%, the Deputy Tahsildar with 15% and the Tahsildar with 5%. Therefore, under the circular issued by the second respondent, the issue was not relating to the recommendation for the purpose granting benefits under a scheme, but failure to make collection of bid amount. In any event, by either of the act the disciplinary proceeding is for the loss caused by the conduct and it was in those circumstances the second respondent has ordered that only a proportionate amount be received. In fact, in the said circular, the second respondent has not put an end to the disciplinary proceeding. What all he has stated is that whenever disciplinary action is initiated against the officials for this kind of lapses, responsibility should be fixed on each official and proportionate amount of loss sustained by the Government should be recovered from each official in the proportion indicated in the circular. 7. Now, the petitioners rely upon the notice issued by the Tahsildar dated 10.1.2001, which is as follows: "ehs; 10.01.2001 ,lk; TlYhh; mwptpg;g[ fPH;fz;l tUtha; Ma;thsh;fs; kw;Wk; fpuhk eph;thf mYtyh;fs;. khtl;l Ml;rpah; kw;Wk; khtl;l tUtha; mYtyh; mth;fspd; bjhiyngrp bra;jp mwpt[iug;go (khtl;l Ml;rpahpd; neh;Kf cjtpah; fzf;F 1/99 ehs; 31.07.1999) Fw;wr;rhl;oy; ,Ue;J tpLjiy bgw Kjd;ik Mizah; kw;Wk; tUtha; eph;thf Mizah;. brd;id mth;fspd; fojk; e.f.o.4107537/95. ehs; 08.05.1997y; fz;Ls;s mwpt[iug;go muRf;F Vw;gl;l ,Hg;gPl;Lj; bjhifapy; tUtha; Ma;thsh; 30 rjtPjj; bjhifa[k;. fpuhk eph;thf mYtyh; 50 rjtPjj; bjhifa[k;. muR fzf;fpy; brYj;j ntz;Lk; vd;gjhy; gzk; brYj;jpa tUtha; Ma;thsh; kw;Wk; fpuhk eph;thf mYtyh; gl;oay; t/vz; bgah; kw;Wk; gjtp brYj;j ntz;oa bjhif (U:gha;) bkhj;jk; brYj;jpa bjhif kPjpbrYj;j ntz;oa bjhif (U:) 1 rhe;jFkhhp (tUtha; Ma;thsh;) 2 Nkhp (tUtha; Ma;thsh;) 40500-- 40500-- 3 re;jpud; (fpuhk eph;thf mYtyh; KJkiy) 11250-- 11250-- https://hcservices.ecourts.gov.in/hcservices/ t/vz; bgah; kw;Wk; gjtp brYj;j ntz;oa bjhif (U:gha;) bkhj;jk; brYj;jpa bjhif kPjpbrYj;j ntz;oa bjhif (U:) 4 nfhtpe;jrhkp (fpuhk eph;thf mYtyh;. ghle;bjhiu) 26250-- 26250-- 5 Fnzrd; (fpuhk eph;thf mYtyh;. brWKs;sp -1) 11250-- 11250-- 6 ,s';nfhtd; (fpuhk eph;thf mYtyh;. TlYhh; -1) 75000-- 67500-- 15000-- 7 fe;jrhkp (fpuhk eph;thf mYtyh;. TlYhh; -2) 123750-- 106625-- 17125-- 8 ,hpad; (fpuhk eph;thf mYtyh;. Xntyp) 292750-- 229750-- 63000-- 9 nfhg[ 213750-- 60000-- 153750-- khtl;l Ml;rpj; jiyth; mth;fspd; Fwpg;ghiz bghJ 1-99. ehs; 29.03.2000d;go Vw;gLj;jg;gl;l Fw;wr;rhl;il ePf;fg;gLk; vdj; bjhptpj;Js;sjhy; gl;oaypy; fz;Ls;s egh;fs; epYitj; bjhifia ,e;j mwptpg;g[ fz;l 15 jpd';fSf;Fs; brYj;j ntz;Lkha; mwpt[Wj;jg;gLfpwJ. nfhl;lhl;rpah;. TlYhh"; By a reading of the said notice of the Tahsildar, it is seen that the Collector has given instruction to issue such notice to the petitioners directing them to deposit 50% of the amount etc. for the purpose of relieving them of the charges based on the circular issued by the second respondent dated 8.5.1997. 8. It is to be noted that no one of the petitioners has ever raised any ground in the affidavits filed in support of these writ petitions that 50% of the amount was directed to be paid on a specific ground that the petitioners will be exonerated of the charges. This is because the charges framed against the petitioners were on 29.3.2000 and it was pending the said charges, in respect of which the petitioners have submitted their explanations, the Tahsildar has issued the notice dated 10.1.2001 stating that 50% of the loss sustained by the Government has to be deposited for the https://hcservices.ecourts.gov.in/hcservices/ purpose of relieving them, of course, based on a telephonic conversation from the District Collector. There is no specific ground raised by the petitioners that they were made to deposit the amount only on the belief that they will be relieved from the charges and that was never taken as a point at the time of enquiry in the departmental proceeding. In the affidavit filed by the Collector also there is nothing to the effect that by telephonic conversation he has permitted the Tahsildar to issue such a notice. In any event, it is not the Tahsildar who is the authority to exonerate the petitioners of the charges. Therefore, a reading of the circular by the second respondent, elicited above, nowhere states that on recovery of the amount proportionately the charges should not be proceeded with. There is no positive order from the respondents that on payment of 50% of the amount the petitioners will be exonerated from the charges. Therefore, the mere reliance placed on the notice of the Tahsildar dated 10.1.2001 cannot be certainly a ground to hold that simply because the petitioners have deposited the amount of 50% of their liability as per the direction, the disciplinary proceeding is vitiated. For the said reasons, I do not accept the contention of the learned counsel for the petitioners in this regard. 9. The petitioners have in detail explained about the incorrectness of every one of the charges. Law is well settled that when once the disciplinary authority as well as the appellate authority have referred to the charges, explanation, evidence of the witnesses and the report of the Enquiry Officer, this Court while exercising its jurisdiction under Article 226 of the Constitution of India cannot sit as an Appellate Authority for re-appreciation of evidence. Therefore, I do not propose to go into the explanations submitted by the petitioners in respect of each and everyone of the charges. But the question to be decided is as to whether there has been a proper consideration, for it is the decision making process which can be interfered with by the Court if there is any deficiency and it is not the decision. 10. The learned counsel for the petitioners has raised a crucial issue about the procedure followed in the enquiry. Therefore, it is relevant to refer to the report of the Enquiry Officer. A reference to the report of the Enquiry Officer shows that in respect of each and every one of the charges the Enquiry Officer has gone into the evidence by himself as per the files and has come to be a conclusion that predominantly the death certificates which are available on the files are suspicious in nature. It is further relevant to