SARAVANAN v. The Principal Secretary to Government Department of Revenue Government of Tamil Nadu Secretariat

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.10.2012CORAM THE HONOURABLE MR. JUSTICE K.K.SASIDHARANW.P.No.16280 of 2011& M.P.No.1 of 2012V.SARAVANAN ... PETITIONER Vs1 THE PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE GOVERNMENT OF TAMILNADU SECRETARIAT, CHENNAI-9.2 THE SPECIAL COMMISSIONER AND DIRECTOR OF SURVEY & SETTLEMENT GOVERNMENT OF TAMILNADU CHEPAUK CHENNAI-5.3 THE DISTRICT COLLECTOR CHENNAI DISTRICT CHENNAI.... RESPONDENTS Prayer :- Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of Certiorari Calling for the recordsof the impugned order dated 15.04.2011 in G.O.(2D) No.183 RevenueSer.4(2) Department, Government of Tamilnadu, Passed by the 1strespondent and quash the same.For Petitioner : Mr.R. Neelakandan for M/s.N.SathyamoorthyFor Respondents : Mr.S.Navaneethan, Addl. Govt. Pleader ORDERWhether a noting made by a Government employee in theofficial file indicating his opinion can be the basis for initiatingdisciplinary proceedings against him, is the core issue that arisesfor consideration in the present writ petition.The brief facts:2. The petitioner was functioning as Sub Inspector of Surveyattached to the Taluk Office of Mylapore-Triplicane Taluk. While so,he was placed under suspension on 19 August 2005 pending initiation https://hcservices.ecourts.gov.in/hcservices/ of disciplinary proceedings. This was followed by a charge memodated 15 March 2006 issued by the Secretary to Government containingas many as two charges. The first charge alleged that the petitionerhas put up a misleading note by calling for records from the TamilNadu Housing Board to ascertain as to whether the land was actuallyacquired by the Board, which according to the department wasmischievous and highhanded, in view of the fact that the land hasalready been acquired for the Board. The second charge relates toissuance of patta on account of the said note.3. The petitioner in his explanation to the charge memojustified the action taken by him to call for a report from the TamilNadu Housing Board. The disciplinary authority appointed an enquiryofficer. The enquiry officer conducted a detailed enquiry andsubmitted a report exonerating the petitioner from the charges. Thereport was not accepted by the disciplinary authority resulting inissuing a notice to the petitioner as to why the charges should notbe treated as "proved". The petitioner, submitted a response to thenotice. The disciplinary authority was not prepared to accept theexplanation and ultimately passed an order imposing the punishment ofstoppage of increment for a period of five years with cumulativeeffect. Feeling aggrieved by the said order, the petitioner is beforethis Court.4. The Deputy Secretary to Government, Revenue Departmentfiled a detailed counter affidavit justifying the initiation ofdisciplinary proceedings against the petitioner. According to thefirst respondent, the land in question has already been acquired bythe Government for Tamil Nadu Housing Board. Therefore, thepetitioner should have made a specific noting that the propertybelongs to the Tamil Nadu Housing Board. Since the petitionerraised an unnecessary query, it resulted in issuing patta in favourof certain private individuals. The first respondent maintained thatthe petitioner has made a misleading note and that was the cause forgranting patta.Rival contentions:5. The learned counsel for the petitioner contended that thepetitioner was only a Sub Inspector of Survey and he was no wayresponsible for issuing the patta. When the application was given,the original revenue records were not before him. Therefore, with aview to protect the interest of the Government, the petitioner made anote indicating that the Housing Board should be addressed toascertain as to whether the Board has acquired the land. There isnothing wrong in making such an endorsement. The learned counselfurther contended that the patta in question was issued only by theTahsildar. However, no action was taken against the Tahsildar. Thelearned counsel submitted that the enquiry officer reported that thecharges were not proved. However, very strangely, withoutindicating any dissenting view, the first respondent has disagreed https://hcservices.ecourts.gov.in/hcservices/ with the findings and punished the petitioner. Therefore, the orderis liable to be quashed.6. The learned Additional Government Pleader justified theorder passed by the disciplinary authority. According to the learnedAdditional Government Pleader, when it is made out that the propertyabsolutely belongs to the Tamil Nadu Housing Board, the petitionerhas no business to call for a report from the Housing Board. Thelearned Government Pleader further contended that the petitioner incollusion with the other revenue officials issued patta in favour ofcertain private individuals and that was the reason for taking actionagainst him.Factual Analysis:7. The Tamil Nadu Housing Board appears to have made acomplaint to the Government alleging that an extent of 77 cents and76.5 cents in Survey Nos.87/1 and 87/2A respectively of ThiruvanmiyurVillage belonging to the Board, were illegally transferred toineligible persons by the Taluk Tahsildar. The Tamil Nadu HousingBoard requested the Government to cancel the patta and to restore theoriginal position. The District Revenue Officer appears to haveconducted an enquiry. During the course of enquiry the DistrictRevenue Officer found that the Tahsildar has obtained an affidavitfrom the applicant and issued patta in his favour. The affidavitproceeds as if there was no civil suit pending with respect to thesaid land and it was not the subject matter of land acquisitionproceedings. The affidavit was given on 10 October 2004. Even thoughthe deponent died on 14 September 2004, the affidavit appears to havebeen signed by him on 10 October 2004. The District Revenue Officeropined that the Taluk Sub Inspector of Suvey recommended the case ofthe applicant and ultimately the Tahsildar issued patta. TheDistrict Revenue Officer also found a file note made by thepetitioner. The District Revenue Officer wanted action to be takenagainst the Tahsildar and his team of officials. This resulted inissuing the charge memo to the petitioner with the following twocharges."Charge IThat Thiru V. Saravanan, while working asSub Inspector of Survey in Mylapore-TriplicaneTaluk has put up a misleading note for calling ofrecords from the Tamil Nadu Housing Board whetherthe land was actually acquired by the Board, whichis mischievous and highhanded one, since the landin S.No.87/1 of Thiruvanmiuyur Village wasacquired by the Tamil Nadu Housing Board in theyear 1986 and the registered holder of the landhas also been clearly mentioned as Tamil NaduHousing Board in the Town Survey Land Register. https://hcservices.ecourts.gov.in/hcservices/ Charge 2Because of his above unwarranted actionpatta has been issued illegally for a land ownedby Tamil Nadu Housing Board in T.S.No.23/1, Block34, of Thiruvanmiuyur Village (Old Survey No.87/1)against all norms of Government servant conductRules, 1973."8. The petitioner in his explanation to the charge memosubmitted that the original records were not before him and with aview to protect the interest of the Tamil Nadu Housing Board, he hasmade a note to call for a report from the Board.9. The enquiry officer appointed by the disciplinary authorityconducted a very detailed enquiry in the matter. The enquiry officerwas of the view that the petitioner was not responsible for grant ofpatta and he has only made a noting to obtain a report from theHousing Board. The said report was considered by the disciplinaryauthority. The disciplinary authority disagreed with the viewsexpressed by the enquiry officer. The annexure to the letter dated28 July 2008 on the file of the Revenue Department contains thereasons for holding the charges proved by disagreeing with thefindings recorded by the enquiry officer. The said finding reads thus:"Letter No.45833/Ser4(2)/05-31 dated 28 July 2008 ANNEXUREReasons for holding the charges as proveddisagreeing with the findings of the InquiryOfficer in respect of Thiru V.Saravanan, formerlySub-Inspector of Survey.Charge No.IYou have failed to prevent wrong issue ofpatta to the individuals rather you have connivedwith the Tahsildar when the land belonged to theTamil Nadu Housing Board and put up a misleadingnote for calling of records from the Tamil NaduHousing Board, whether the land was actuallyacquired by the Board. As such this chargelevelled against you is held as proved.Charge No.2In view of the remarks offered in respectof Charge No.1 holding the charge as proved, thischarge also is held as proved." https://hcservices.ecourts.gov.in/hcservices/

10. The dissenting note prepared by the first respondentindicates that the petitioner colluded with the Tahsildar to issuepatta with respect to a property owned by the Tamil Nadu HousingBoard. This dissenting note is nothing but reproduction of theoriginal charge memo issued to the petitioner. There is nothingstated in the said note as to the actual reason which weighed withthe disciplinary authority to disagree from the findings recordedby the enquiry officer.11. The core issue is whether the first respondent wasjustified in initiating disciplinary proceedings against thepetitioner solely on account of making a file note. 12. It is not in dispute that the petitioner is not theauthority to issue patta. The Tahsildar of the concerned Taluk is thestatutory authority to grant patta. The Tamil Nadu Patta Pass bookAct mandates that in case the revenue records does not contain thetrue facts, it is open to the aggrieved to file an application beforethe Tahsildar. The Tahsildar is, therefore, the competent authorityto grant patta. The application submitted by the applicant to issuepatta in respect of the lands in Survey Nos.87/1 and 87/2 atThiruvanmiyur Village was forwarded to the petitioner. Thepetitioner having found that the neighbouring lands were acquired bythe Tamil Nadu Housing Board, wanted a report to be called for fromthe Housing Board. Therefore, he made an endorsement in the notesfile to call for a report from the Tamil Nadu Housing Board as towhether the land was acquired by the Housing Board. The said note wasconsidered as a misleading note by the first respondent.13. The fact that the petitioner has made a specificendorsement that before considering the application for patta, areport should be obtained from the Tamil Nadu Housing Board itselfshows his bona fides. The file note made by the petitioner to callfor a report from the Tamil Nadu Housing Board, cannot be treated assomething misleading. It would be a misleading note only in case hehas made an endorsement that there is no requirement to obtain areport from the Tamil Nadu Housing Board and the applicant has madeout a case for issuance of patta. This aspect was considered by theenquiry officer resulting in submitting a report that the chargeswere not proved. The first respondent was not having any additionalmaterial to take a different view in the matter. The very same chargememo was reissued on a subsequent occasion treating it, as adissenting opinion, resulting in punishing the petitioner.14. The Government acts through its instrumentalities. Thefile would be routed through different officials right from Clerks tothe Secretary and then to the concerned Minister. The Subordinateofficials are entitled to record their views in the note file. It isopen to an officer to express his views with respect to a subjectmatter in a particular manner. Another officer is entitled to https://hcservices.ecourts.gov.in/hcservices/ indicate a different opinion. It is for the Government to take adecision in the matter ultimately. In case the ultimate authority totake a decision is the Secretary, necessarily, the Secretary has toexamine the opinion recorded by the Subordinates at various levelsand to form a definite opinion to accept one view or the other. Theviews expressed by the concerned officers are all tentative in natureand it would not bind the Government. Merely because the officer hasgiven a particular opinion it cannot be said that he has taken adecision consciously to help a particular person. In case theofficers are subjected to disciplinary action on account of theirexpression of opinion, no officer would be dare enough to indicatehis opinion with respect to a subject matter. Things would bedifferent in case records were manipulated to grant undue benefits inexchange of pecuniary gain.The Authorities:15. The Supreme Court in Shanti Sports Club v. Union of India,(2009) 15 SCC 705, considered the question as to whether a noterecorded in the file would confer any right or adversely affect theright of a person. The Supreme Court observed that notings are onlyopinion of the concerned officer and it would not constitute adecision. "52. As a result of the above discussion,we hold that the notings recorded in theofficial files by the officers of the Governmentat different levels and even the Ministers donot become decisions of the Government unlessthe same is sanctified and acted upon by issuingan order in the name of the President orGovernor, as the case may be, authenticated inthe manner provided in Articles 77(2) and 166(2)and is communicated to the affected persons. Thenotings and/or decisions recorded in the file donot confer any right or adversely affect theright of any person and the same can neither bechallenged in a court nor made basis for seekingrelief. Even if the competent authority recordsa noting in the file, which indicates that somedecision has been taken by the authorityconcerned, the same can always be reviewed bythe same authority or reversed or overturned oroverruled by higher functionary/authority in theGovernment."16. The scope and ambit of notings recorded in the file, cameup for consideration in Jasbir Singh Chhabra Vs. State of Punjab 2010(2) Scale 754 = 2010 (4) SCC 192. The Supreme Court said https://hcservices.ecourts.gov.in/hcservices/ "20. ..........It must always be rememberedthat in a democratic polity like ours, thefunctions of the Government are carried out bydifferent individuals at different levels. Theissues and policy matters which are required to bedecided by the Government are dealt with byseveral functionaries some of whom may recordnotings on the files favouring a particular personor group of persons. Someone may suggest aparticular line of action, which may not beconducive to public interest and others maysuggest adoption of a different mode in largerpublic interest. However, the final decision isrequired to be taken by the designated authoritykeeping in view the larger public interest. Thenotings recorded in the files cannot be made basisfor recording a finding that the ultimate decisiontaken by the Government is tainted by malafides oris influenced by extraneous considerations. TheCourt is duty bound to carefully take note of thesame."17. The Supreme Court in Union of India vs. Vartak LabourUnion 2011 (3) Scale 246 = (2011] 4 SCC 200 reiterated the legalposition that inter departmental communications and notings do nothave the sanction of law. The Supreme Court said"14. It is trite that inter-departmentalcommunications and notings in departmental filesdo not have the sanction of law, creating alegally enforceable right. In Sethi Auto ServiceStation & Anr. Vs. Delhi Development Authority &Ors.3 (2009) 1 SCC 180, a Division Bench of thisCourt, in which one of us (D.K. Jain, J.) was amember has observed thus: Needless to add that internal notingsare not meant for outside exposure.Notings in the file culminate into anexecutable order, affecting the rightsof the parties, only when it reaches thefinal decision-making authority in thedepartment, gets his approval and thefinal order is communicated to theperson concerned." Summary of conclusion:18. The petitioner has only expressed his opinion in the notesfile. The petitioner wanted the interest of the Tamil Nadu Housing https://hcservices.ecourts.gov.in/hcservices/ Board to be protected. It was only for the said purpose thepetitioner has made an endorsement that the report of the HousingBoard should be obtained as to whether the Board has acquired theproperty. The noting made by the petitioner was not acted upon bythe Tahsildar. The Tahsildar accepted the affidavit produced by theapplicant and on the basis of the sworn affidavit, patta wasgranted. Instead of taking action against the Tahsildar for issuingpatta fraudulently, the first respondent has taken action onlyagainst the petitioner. The petitioner was not instrumental inissuing patta to the concerned applicant. It appears that theGovernment have not taken any action against the Tahsildar and actionwas taken selectively against the petitioner. The disagreeing noteprepared by the first respondent does not contain additionalmaterials other than the materials relied on by the enquiry officerto arrive at a conclusion that the petitioner was not responsible forissuing patta in respect of the property owned by the Tamil NaduHousing Board. The disciplinary authority committed a jurisdictionalerror by punishing the petitioner for expressing his opinion.Therefore, I am of the view that the impugned order is liable to beset aside.19. In the result, the impugned order dated 15 April 2011 isset aside. The writ petition is allowed. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarTr/To1 THE PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE GOVERNMENT OF TAMILNADU SECRETARIAT, CHENNAI-9.2 THE SPECIAL COMMISSIONER AND DIRECTOR OF SURVEY & SETTLEMENT GOVERNMENT OF TAMILNADU CHEPAUK CHENNAI-5.3 THE DISTRICT COLLECTOR CHENNAI DISTRICT CHENNAI.1 cc To Government Pleader, SR.No.662281 cc to Mr. N.Sathyamoorthy, Advocate, Sr.No.66333W.P.No.16280 of 2011ts(co)pmk.6.11.2012