IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.12.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.40857 of 2006 (O.A.No.7444 of 2000) K.Marimuthu ...Petitioner Vs 1.The Special Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai – 600 005. 2.The Collector, Cuddalore, Cuddalore District. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorari, to call for the records relating to the impugned order of the first respondent in Pro.No.40377/Ser.3 (1)/2000 dated 10.8.2000 confirming the order of the second respondent in Na.Ka.No.1741/98 dated 30.11.1999 and quash the same and grant all consequential benefits to the petitioner. For Petitioner : Mr.P.Mohanraj For Respondents: Mr.R.Murali, G.A. O R D E R The petitioner filed O.A.No.7444 of 2000, seeking to challenge the order dated 10.08.2000 passed by the first respondent, Special Commissioner for Revenue Administration. By the aforesaid order dated 10.08.2000, the first respondent dismissed the appeal filed by the petitioner dated 03.02.2000 and confirmed the order of penalty imposed by the second respondent, District Collector dated 30.11.1999. The petitioner by the said order was imposed with the penalty of stoppage of increment for a period of one year with cumulative effect. Challenging the said penalty which was confirmed by the Appellate Authority's order, the petitioner preferred O.A.No.7444 of 2000 before the Tribunal. 2. Notice of motion was ordered on 13.10.2000. On notice from the Tribunal, the second respondent, District Collector had filed a reply affidavit dated 28.02.2002. https://hcservices.ecourts.gov.in/hcservices/ 3. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.40857 of 2006. 4. The facts leading to the filing of the case are as follows:- The petitioner, while he was working as Head Assistant in the office of the Special District Revenue Officer (Land Acquisition) TACID, Cuddalore was issued with a charge memo under Rule 17(b) of the Tamilnadu Civil Services (D & A) Rules. The charges levelled against the petitioner were three-fold. Firstly, the petitioner got lands assigned in the name of his wife to the extent of 1.52 acres in U.Kolapakkam Village. Further in Periyanesalur Village of Vridhachalam Taluk, similarly lands were assigned in the name of his wife to the extent of 4.85 acres. Thus, 1.52 acres of wet lands and 4.85 acres of dry lands were assigned in the name of his wife. It was stated that by getting assignment of as much as 5 acres, the petitioner deprived the landless poor persons from getting assignment. The lands purchased were not shown in his property statement and even the land in respect of U.Kolapakkam Village which was got assigned in the name of his wife was sold to one Anthonysamy in the year 1995 and no prior permission of the Government was obtained for selling the land. Therefore, by not- obtaining prior permission and not showing the lands in the property statement, it was alleged that the petitioner had contravened Rule 7 of the Tamil Nadu Government Servant's Conduct Rules, 1973. The second charge against the petitioner was that he constructed a house in No.94, Periyar Nagar without obtaining permission and also had not shown the same in his property statement. 5. The petitioner gave an explanation stating that there was no ban order for assignment of land either in favour of Government servants or their relatives and that the lands were assigned as early as in the year 1970. In respect of charge that he had not shown the house in his property statement, he stated that the house constructed by him was mortgaged with the Tamil Nadu Housing Board and mortgage was effected even before the Tamil Nadu Government Servants' Conduct Rules came into effect from 18.08.1973. He further stated that the said house has been shown in his property statement filed for the year ending 31.12.1994 with the office of the Tahsildar, Chidambaram. 6. The District Statistical Officer was appointed as the Enquiry Officer. The Enquiry Officer by his report dated 12.05.1999 found that the petitioner was guilty of the charges. On the basis of the report submitted by the Enquiry Officer, the District Collector passed a detailed order and found that charge No.1 was proved beyond doubt. It was found that the petitioner had submitted the property statement only on 01.07.1997 and whereas in that return, it was indicated that the land in U.Kolapakkam Village was sold as early as 17.07.1995 to one Anthonysamy. Therefore, the petitioner by filing such a subsequent return was attempting to https://hcservices.ecourts.gov.in/hcservices/ escape regarding the property dealt with by him. The petitioner was imposed with a penalty of postponement of increment for one year with cumulative effect. The petitioner was also advised that if he is aggrieved, he can prefer an appeal to the first respondent. 7. Accordingly, the petitioner preferred an appeal to the first respondent vide his appeal dated 03.02.2000. The Appellate Authority after considering the appeal, by an order dated 10.08.2000 dismissed the appeal. The Appellate Authority agreed with the competent authority's finding and held that by the time the appeal was taken up, the petitioner had become Deputy Tahsildar and his act of getting assignment of more than 5 acres in the name of his wife is against Rules and he did not disclose the lands in his property statement for more than 10 years and even after selling a portion of the land in the year 1995, the same was not reflected in the property statement and such a sale was done without prior permission or intimation to the Government. Therefore, there was no reason to interfere with the penalty imposed on the petitioner. In the last paragraph of the order, the authority also observed that the punishment is not proportionate to the guilt recorded against the petitioner and it requires a severe punishment on the petitioner. 8. The learned counsel for the petitioner submitted that the assignment of land was made in the year 1970 and during that period there was no ban for assignment of lands in favour of Government Servants or their family members. He also submitted that in the property statement, sale of property was reflected. In any event, having regard to his long tenure, the imposition of penalty with cumulative effect will have a cascading effect over the entire life time. Therefore, the Court should interfere with the penalty. 9. In the counter affidavit, it was stated that the lands were assigned by the then Tahsildar, who was not competent to assign lands on collection of market value and if at all any market value were collected, it has to be fixed by the Government. The petitioner also not produced any evidence that he had paid the market value for the assignment of lands given to him and that he had managed to get assignment of large extent of lands prior to 1978 by using his official position as his employment was in the revenue department. The petitioner's conduct was unbecoming of a Government Servant as he had contravened the Tamil Nadu Government Servant's Conduct Rules, 1973. It is also stated that the petitioner had retired from service on 30.06.2003. 10. With reference to the infraction of Tamil Nadu Government Servant's Conduct Rules, Rule 7 stipulates that a Government servant shall only after notice to the prescribed authority, acquire or dispose of any immovable property standing either in his name or in the name of any member of his family. Such a notice is necessary even where any immovable property is acquired by any member of the family of the Government servant out of the resources of the Government servant. Even before enactment of 1973 Rules, the https://hcservices.ecourts.gov.in/hcservices/ Government servants' were controlled by the Government Servant's Conduct Rules 1960. In Rule 26, it is clearly stated any order made or action taken under the Rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these rule and further that such repeal will not prevent the authorities from taking action even under the corresponding present rules. Therefore, the petitioner's defence that he has filed property return will not be accepted with a pinch of salt as such a return was filed in the year 1977 and the sale was taken place in 1970 and admittedly no permission of the Government was obtained. 11. On this fact alone, it is unnecessary to go into other issues, namely, whether he had a right in getting assignment in the name of his wife before ban was imposed on such assignment. Considering the fact that the petitioner though had issued with a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules, ultimately, he was let off with a minor penalty of postponement of increment for one year with cumulative effect. In such circumstances, the last paragraph of the order of the Appellate Authority assumes significance, wherein, the authority observed that the petitioner was let off with a minor penalty and that a major penalty should have been given. 12. In this context, it is not out of place to refer to the judgment of the Supreme Court in Praveen Bhatia v. Union of India reported in (2009) 4 SCC 225. The Supreme Court more or less dealt with a similar situation as can be seen from the following passage found in paragraph 9: "9. Challenging the order of compulsory retirement the writ petition was filed. It was the appellant's stand that the court of inquiry has exonerated him on all counts except late filing of property returns. According to the appellant the same was not of serious nature which would warrant compulsory retirement. The stand of the respondent before the High Court was that the transactions were between 1981 to 1986 and the return was belatedly filed after about six years on 23.3.1992 therefore the conduct was most unbecoming of an officer of the Air Force. Therefore the order of compulsory retirement was legal and valid. The High Court accepted the stand of the respondent and dismissed the petition. The stand taken before the High Court is reiterated in the present appeal." 13. The Supreme Court in paragraph 12 dealt with the definition of misconduct. What was referred in sub-paragraph 23 is the reproduction of the similar Rule found in the Tamil Nadu Government Servants Conduct Rules. https://hcservices.ecourts.gov.in/hcservices/ 14. In paragraphs 13 and 14, on the question of penalty for such misconduct, the Supreme Court indicated as follows:- "13.The power of the court to interfere with the quantum of punishment is extremely restricted and only when the relevant factors have not been considered the court can direct reconsideration or in an appropriate case to certain litigation, indicate the punishment to be awarded; and that can only be in very rare cases. 14.It is evident from the record that the prescribed period for filing property return is six months and though the appellant was aware of the requirements he did not choose to file any return; even during the course of enquiry no return was filed and ultimately after show- cause notice was issued it was filed. That being so there is no merit in this appeal which is accordingly dismissed." 15. In the light of the above, the impugned order does not suffer from any infirmity or illegality. Hence, the writ petition stands dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar svki To 1.The Special Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai – 600 005. 2.The Collector, Cuddalore, Cuddalore District. + 1 cc to Government pleader Sr.88797 W.P.No.40857 of 2006 (O.A.No.7444 of 2000) MDR(CO) EU 6.1.11 https://hcservices.ecourts.gov.in/hcservices/