IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.1.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.28225 of 2007 N.Dharmalingam .. Petitioner Vs. 1. The Principal Chief Conservator of Forest Panagal Building, Chennai – 600 015. 2. The Conservator of Forests Vellore Circle, Vellore. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the first respondent in Se.Mu.Order No.AA2/31498/06, dated 25.1.2007, confirming the order of the second respondent in Na.Ka.No.12989/03-A2, dated 25.3.2005, quash the same and direct the respondents to confer all consequential benefits. For Petitioner : Mr.M.Hidayathulla Khan For Respondents : Mr.K.Rajasekar Government Advocate (Forests) ORDER The petitioner, who joined the service in Forest Department as Forest Guard, was subsequently promoted as a Forester on 8.7.1999. While working in the Polur Forest Range, Gangavaram Section, he was placed under suspension along with other subordinate staff working under him, namely M.Palanivelu (Forest Ranger), J.Rajan (Forest Guard) and K.Muniswamy (Forest Watcher), on the charge that they have not prevented the laying of road in Paravadhamalai Reserve Forest, by which illicit blasting of stones has taken place, resulting in neglect of protecting the forest area. 2. A charge memo was issued against the petitioner and others, except Forest Guard, on 18.11.2003 and in respect of the Forest Guard, the charge memo was issued on 1.12.2003, all under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and the charges were framed by the District Forest Officer, Tiruvannamalai on two grounds, viz., (i) the failure to prevent laying of road to the extent https://hcservices.ecourts.gov.in/hcservices/ of 1900 Meters in the width of 7 to 10 Meters in the Paravadhamalai Forest Range from Pachayamman Temple to Veerabadrasamy Temple; and (ii) the failure to prevent blasting of stones effected in an area of one acre in Paravadhamalai forest range resulting in breaking of 13000 stones, which is a breach of the provisions of the Forest Act, 1980. 3. The petitioner and others, viz., M.Palanivelu (Forest Ranger), J.Rajan (Forest Guard) and K.Muniswamy (Forest Watcher) submitted their explanation and the second respondent has appointed an Enquiry Officer on 24.12.2003. The Enquiry Officer conducted a common enquiry on all the four persons and found that the charges were proved in his report dated 28.7.2004 and copy of the report was served on the petitioner on 31.7.2004, for which the petitioner has given his further explanation on 28.8.2004. In spite of the said explanation, the second respondent has imposed a major punishment on the petitioner of reduction of pay to bottom scale of Forester for a period of five years with cumulative effect. It was aggrieved against the said order of the second respondent, the petitioner has filed an appeal before the first respondent, who, in the impugned order dated 10.6.2005, has confirmed the decision of the second respondent. 4. The impugned orders are challenged mainly on the ground that when a common enquiry was conducted in respect of the four officials, three among them being subordinates to the petitioner, the subordinate officials were inflicted lesser punishment, while the petitioner has been imposed with major punishment, as stated above. That apart, the petitioner has challenged the impugned order of the first respondent/Appellate Authority on the ground that the first respondent has not applied his mind, especially when the petitioner has raised more than ten points in the grounds of appeal against the original order of punishment passed by the second respondent. 5. The learned counsel for the petitioner would submit that while a common enquiry was conducted and a common order was passed, while imposing punishment there has been discrimination shown and that discrimination itself is sufficient for this Court to interfere, by relying upon the judgment of the Supreme Court in Director General of Police and others v. G.Dasayan, [1998] 2 SCC 407. He would also submit that the first respondent/Appellate Authority has not traversed the various points raised by the petitioner and therefore, it should treated as one passed with total non application of mind. 6. On the other hand, the learned Government Advocate (Forest) would submit that the first respondent/Appellate Authority has applied its mind, which is evidenced by the very fact that the first respondent/Appellate Authority has given a crisp reason and therefore, it is not for this Court to interfere with the same. As far as the nature of punishment inflicted on four persons against whom common enquiry was conducted, it is his submission that the petitioner being a https://hcservices.ecourts.gov.in/hcservices/ superior officer among all the four has got more responsibility and a different punishment has been imposed, which cannot be said to be a discrimination. 7. I have heard the learned counsel for the petitioner and the learned Government Advocate appearing for the respondents and considered the issue involved in this case. 8. It is seen that the charges framed against all the four persons are the same and the petitioner has not complained anything about the non compliance of principles of natural justice. But the major issue that has to be considered on the facts of the present case is as to whether any arbitrariness has been shown in imposing punishment in the admitted circumstance of conducting a common enquiry in respect of the petitioner and three others in respect of the same charges. 9. It is true that compared to the petitioner, the other three officials are holding subordinate posts in the following hierarchy, viz., the petitioner is a Forester, while M.Palanivelu is a Forest Ranger, J.Rajan is a Forest Guard and K.Muniswamy is a Forest Watcher. It is also not in dispute that in respect of M.Palanivelu, Forest Ranger, the punishment imposed was stoppage of increment for two years without cumulative effect. Similarly, in respect of J.Rajan, Forest Guard, the punishment imposed was stoppage of increment for one year without cumulative effect and in respect of K.Muniswamy, Forest Watcher, the punishment imposed was stoppage of increment for one year without cumulative effect. While in respect of the above said three persons minor punishment has been imposed, which has no effect on the pensionary benefits, in respect of the petitioner, major punishment has been imposed by reduction of pay to the bottom scale of Forester for a period of five years with cumulative effect, which means not only the pay of the petitioner for five years should be in the bottom scale, but this will have cumulative effect in his pensionary benefits. 10. It was in Director General of Police and others v. G.Dasayan, [1998] 2 SCC 407, the Supreme Court while considering a similar circumstance where similar charges were levelled against three Constables and a Head Constable and disciplinary authority while exonerating two Constables, has imposed punishment of dismissal from service on another Constable, who was respondent before the Supreme Court, and compulsory retirement on Head Constable, taking note of the discrimination which has been found to be at large, to meet the ends of justice, by exercising the jurisdiction under Article 142 of the Constitution of India, has converted the order of dismissal of Constable to that of compulsory retirement on a par with the Head Constable. 11. Under similar circumstances, when in a common enquiry few of them were left out and others were punished, this Court had an occasion https://hcservices.ecourts.gov.in/hcservices/ to consider the issue in the light of Article 14 of the Constitution of India in R.Karuppannan v. T.N.Water Supply and Drainage Board, 1992 (I) MLJ 303, and K.S.Bakthavatsalam,J., as His Lordship then was, while narrating the implication of Article 14 of the Constitution of India, by relying upon the earlier judgment of the Supreme Court has narrated the issue as follows: "10. That apart, as contended by the learned counsel for the petitioner, the order has to go on the basis of Article 14. From the order passed by the disciplinary authority, it is clear that the disciplinary authority has come to the conclusion that the list sent by the petitioner alone is not final; at any rate, the disciplinary authority thought that it is not necessary to take any action against the Superintending Engineer and the petitioner can be made scape-goat. That in my view offends Article 14 of the Constitution. The Supreme Court had an occasion to consider a case like this in E.S.Reddy v. Chief Secretary, Government of A.P., AIR 1987 SC 1550. That was a case against the judgment of the Division Bench of the Andhra Pradesh. There, the learned single Judge of the Andhra Pradesh High Court held that in a case of suspension, there was no justification for differential treatment meted out to one officer and leaving another officer. However, the Division Bench of the Andhra Pradesh High Court reversed that. Against that, an appeal was filed before the Supreme Court. From the observations made in that judgment, it is clear that if an officer alone is punished in that case (suspended) and not the other officer, who is alleged to be the co-accused it will be offending Art.14 of the Constitution. The Supreme Court observed at page 1552 thus: "In compliance to this Court's order, Shri P.Ram Reddy, learned counsel for the State Government places before us the letter of the State Government dated May 2, 1984 as also the report of the Director-General, Anti-Corruption Bureau, Andhra Pradesh dated March 25, 1956. It appears from the letter that sanction of the Central Government is necessary under Sec.6(1)(a) of the Prevention of Corruption Act, 1947 for the prosecution of R.Parthasarathy, I.A.S., and that of the State Government of Maharashtra for the prosecution of P.Abraham. We have perused the report of the Director-General and it cannot be said that the charges levelled against the petitioner are groundless. It is somewhat surprising that the petitioner alone should have been placed under suspension by the State Government pending https://hcservices.ecourts.gov.in/hcservices/ contemplated departmental enquiry under Rule 13 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1963 and not the other two officers T.V.Choundhary and S.M.Rao Chowdhary, the then Managing Director who it appears are equally culpable. The matter is adjourned till after vacation to enable the State Government to obtain the requisite sanction from the Central Government for the prosecution of R.Parthasarathy and that of the prosecution of P.Abraham under Sec. 6(1)9a) of the Act. Shri P.Ram Reddy, learned counsel for the State Government shall in the meanwhile convey to the State Government the concern expressed by this Court that the petitioner alone could have been placed under suspension and not the other officers who are alleged to be co-accused. We are afraid, if the State Government does not pass any order placing the other officers under suspension it may become necessary for the Court to revoke the suspension of the petitioner at the next hearing." From the observations, it is clear that when two persons are responsible, one alone cannot be made a scape-goat. In this case, a reading of the punishing authority clearly shows that the Superintending Engineer has been let off pitying him, at the same time inflicting a punishment on the petitioner. In my view, this itself is sufficient to show that the order passed in this case offends Art.14 of the Constitution, and has got to be set aside on that ground alone." 12. In respect of the second point which is raised by the petitioner, viz., about the nature of order passed by the Appellate Authority to the effect that it is with non application of mind, I do not accept the contention of the petitioner for the simple reason that on a reference to the order of the Appellate Authority, there is nothing to apprehend that the Appellate Authority has not applied its mind. In fact, the Appellate Authority has considered the nature of duties which are to be discharged by the officials like the petitioner, which is evidenced by the observation made by him, which is as follows: ",jpypUe;J 21/08/03 md;nw gUtjkiy fhg;g[f; fhl;oy; ghij mikf;Fk; Kaw;rpfs; eilbgw;wij tdth; xg;g[f; bfhs;fpwhh;/ tdth; flik. tHf;F nghLtjhy; kl;Lk; Koe;J tpltpy;iy/ nkYk;. ,r;rk;gtk; bjhlh;ghf Kjy; epiyapy; gjpe;j tHf;fpy; 20 egh;fs; fhg;g[f; fhl;oDs; EiHe;J ghijapid mfyg;gLj;Jk; gzp bra;tij tdth; jiyikapy; fz;Lgpoj;J Fw;w tHf;F gjpe;J ,zf;ff; fl;lzk; tr{y; bra;ag;gl;Ls;sJ/ fhg;g[f; fhl;oy; ghij mikf;Fk; Kaw;rpapy; xU https://hcservices.ecourts.gov.in/hcservices/ Tl;lk; Kaw;rp bra;a[k; nghJ mth;fisg; gpoj;J ePjpkd;wj;jpy; tHf;F bjhluhky; ,zf;ff; fl;lzk; tR{y; bra;jJ K:yk; tdth; jtwpid K:o kiwj;Js;sJ g[ydhfpwJ/" Therefore, the contention that there is a total non application of mind by the first respondent/Appellate Authority has no basis. 13. However, by considering the different treatment meted out to the petitioner when compared to the other officials who have involved in the common charges framed by the disciplinary authority, and imposing of a more severe punishment, which has got an impact on the pensionary benefits of the petitioner, I am of the considered view that there is certainly an element of arbitrariness in imposing more serious punishment on the petitioner. If only the second respondent has applied the reasonableness in imposing punishment, the same would have been at least withholding of increment for five years without cumulative effect and in such event, it would have met the ends of justice in proper manner. However, the same has not been considered. 14. In such view of the matter, only on the ground that there has been some disproportionality in the punishment and also arbitrariness in imposing punishment on the petitioner when compared to co- delinquents, I set aside the order of punishment imposed by both the respondents and remand the matter to the second respondent to decide about the quantum of punishment to be imposed on the petitioner, by taking note of the fact that the other co-delinquents have been inflicted lesser punishment. Such order shall be passed by the second respondent within a period of eight weeks from the date of receipt of a copy of this order. This writ petition is ordered accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Principal Chief Conservator of Forest Panagal Building, Chennai – 600 015. https://hcservices.ecourts.gov.in/hcservices/ 2. The Conservator of Forests Vellore Circle, Vellore. +1cc to Mr.M.Hidayathullakhan, Advocate Sr 6299 +1cc to Special Govt. Pleader Sr 6298 TAM(CO) km/14.2. W.P.No.28225 of 2007 https://hcservices.ecourts.gov.in/hcservices/