K.Jayakumar v. The Registrar of Co-operative Societies Kilpauk Chennai 102 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:04.11.2009CORAM:THE HONOURABLE MR.JUSTICE V.DHANAPALANW.P.NO.4139 OF 2007K.Jayakumar.. Petitionervs1.The Registrar of Co-operative SocietiesKilpaukChennai 102.The Joint Registrar of Co-operative SocietiesThiruvannamalai RegionThiruvannamalai3.The Deputy Registrar of Co-operative SocietiesCheyyarThiruvannamalai District.. RespondentsWrit Petition is filed under Article 226 of the Constitution ofIndia for the issue of writ of Certiorari calling for the records inpursuant to the impugned order passed by the 2nd respondent inproceeding Na.Ka.No.11878/01/Pa.tho dated 27.12.2006 and quash thesame.for petitioner : Mr.S.M.Subramaniamfor respondents : Mrs.Dakshayani Reddy, G.A., ORDERThe order of the second respondent in proceedingsNa.Ka.No.11878/01/Pa.tho dated 27.12.2006 has been called in questionand seeking to quash the same, the present writ petition is filed. 2.(a)The petitioner is working as Junior Assistant in theOffice of the Deputy Registrar of Co-operative Society, CheyyarCircle. It is the case of the petitioner that based on some falseset of facts, the disciplinary proceedings were initiated against himby the third respondent and a charge-memo was issued in proceedingsdated 30.7.1998. https://hcservices.ecourts.gov.in/hcservices/ (b) The first charge is that the petitioner had taken a xeroxcopy of the proceedings sent by the Joint Registrar to the DeputyRegistrar in Proceedings No.13638/98/Pa.Tho., dated 30.6.1998 andfiled the same before the Tribunal in O.A.No.5647/1998 and the secondcharge is that he has not performed his duty in time. As thepetitioner has denied the charges, an enquiry was conducted and anenquiry report was submitted to the second respondent, based on whicha final order has been passed in Proceedings dated 26.5.2000 imposingthe punishment of "Censure". According to the petitioner, in fact,the enquiry officer held that the charges were not proved against himand accordingly, the disciplinary proceedings were closed. (c)The second respondent after a lapse of six years issued ashow cause notice in proceedings dated 20.9.2006 stating that therewas a defect in the enquiry conducted in the year 1999 and furtherthat they are not accepting the report of the enquiry officer andaccordingly, sought for an explanation from the petitioner. Thepetitioner had submitted his explanation on 05.10.2006. Withoutconsidering any of the factors, the second respondent passed theimpugned order imposing the punishment of stoppage of increment forsix months without cumulative effect in the proceedings dated27.12.2006. (d)The abovesaid proceedings dated 27.12.2006 has beenchallenged in this petition on the grounds that the impugned order iscontrary to law and facts, there is total non-application of mind onthe part of the second respondent, the charges under Rule 17(b) wasissued by the third respondent in proceedings dated 30.7.1998 and theenquiry officer made a finding that the charges were not proved. Thefinal order was passed in the proceedings on 26.5.2000 imposing thepunishment of "Censure". After the final order was passed, thequestion of not accepting the enquiry report does not arise and thevery show cause notice dated 20.9.2006 is unsustainable and the orderof the second respondent reviewing the final order is contrary to therules as contemplated under Rule 36 of the Tamil Nadu Civil Services(Discipline and Appeal) Rules.4.(i)The respondents have filed counter. While denying theaverments made by the petitioner, they have stated that thepetitioner-Thiru K.Jayakumar who is working as Junior Assistant inthe Office of Deputy Registrar of Co-operative Societies, Cheyyar,was given a charge-memo dated 30.7.1998 under Rule 17(b) of TamilNadu Civil Services (Discipline and Appeal) Rules, by the DeputyRegistrar of Co-operative Societies, Cheyyar for the allegedactivities such as tampering of official records and dereliction ofhis duty as Junior Assistant and the said charges are extractedhereunder: https://hcservices.ecourts.gov.in/hcservices/ "Charge:1He has taken Xerox copy of the confidentialletter Rc.13633/98 EM, dated 30.06.1998 of the JointRegistrar of Cooperative Societies, Tiruvannamalaiwithout permission of the Deputy Registrar ofCooperative Societies, Cheyyar, thereby he had tamperedthe Government secrecy. By making use of the abovesaidXerox copy, he has filed O.A.No.5647 of 99 before theTamil Nadu Administrative Tribunal and obtained stay on16.07.1998 of the proceedings Rc.13633/98 EM, dated30.06.1998. Charge:2He has failed to discharge his duties asJunior Assistant i.e. improper maintenance of tapaldistribution register, Special tapal register, Registerof D.O.letters, Despatch Register and Stamp Register.Also failed to submit library book list, Furniture listand charge list."Denying the above charges, the petitioner submitted his explanationon 28.10.1998 and a domestic enquiry was ordered and the enquiryofficer submitted his report on 22.6.1999 holding that the chargeslevelled against the petitioner were not held proved. However, thedisposing authority, namely, the second respondent has come to theconclusion that the charges levelled against the petitioner were heldproved and fit for heavy punishment. However, by considering theexplanation given by the petitioner, he was awarded 'censure' by thesecond respondent in his proceedings dated 26.5.2000.(ii)In the counter, it is also stated that while taking officeinspection of the second respondent's office by the AdditionalRegistrar(Marketing, Planning and Development), Office of theRegistrar of Cooperative Societies, Chennai the Additional Registrarof Co-operative Societies has reviewed the disciplinary cases. Whilegiving remarks on the aforesaid disciplinary case he has stated thatconsidering the gravity of charges, the punishment awarded to thepetitioner was insufficient. Hence, it requires revision. So theconnected records and files should be sent to the Registrar ofCooperative Societies for onward transmission to the Government, whois the competent authority to take revision under Rule 36.Accordingly, the records and files were submitted to the Governmentfor revision. After examination, the Government in their letterNo.20753/CL2/05-7, Cooperation, Food and Consumer ProtectionDepartment, dated 30.5.2006 has stated that the disposing authorityhas taken decision against the enquiry officer, he has to give showcause to the delinquent officer for his further explanation for suchdeviation. But in this case such a procedure has not been followed.Hence, procedural flaw has been occurred. So the 2nd respondent was https://hcservices.ecourts.gov.in/hcservices/ directed to rectify the procedural flaw and to proceed further in thematter. Accordingly, the petitioner was given show cause notice on20.9.2006, for which he had submitted his explanation on 05.10.2006.After considering the merits of the case and gravity of the charges,the second respondent had disposed the charge memo on 30.7.98 bygiving punishment of stoppage of increment for six months withoutcumulative effect excluding leave period vide ProceedingsNo.11878/01, EM dated 27.12.2006. The petitioner has received thesaid order on 9.1.2007. Against the said punishment, the petitionerhad obtained interim stay.(iii)It is stated that the impugned order is well withinlaw and on facts and on direction of the Government the charge-memowas disposed of after following the due procedure laid down under therules and with proper application of mind and on careful examinationof the records, after duly following the procedure laid down underthe rules, the second respondent has passed the order.(iv)According to the respondents, it is the discretionarypower of the disposing authority whether to accept or not to acceptthe findings of the enquiry officer. In this case though the enquiryofficer submitted the enquiry report that the charges were notproved, the disposing authority using his discretionary power hadcome to the conclusion that the charges levelled against thepetitioner were held proved and the petitioner was awarded censurefor the proved charges. While taking inspection of the secondrespondent's office by the Additional Registrar(MPD) office of theRegistrar of Cooperative Societies, Chennai it was observed that thepunishment awarded to the petitioner i.e., censure is foundinsufficient. Hence, it required revision and the connected papersshould be sent to the Registrar of Cooperative Societies, Chennai foronward transmission to the Government who, in this case is thecompetent authority to revise the order under Rule 36. Accordingly,revision was taken up by the Government. The Government in its letterNo.20753/CL2/05-7, Cooperation, Food and Consumer ProtectionDepartment dated 30.05.2006 stated that a procedural flaw hasoccurred in the said disciplinary case. Hence, the disposingauthority has taken action to rectify the flaw and to proceed furtheron the directions of the Government. Therefore, the power of theGovernment to review the order as per the rule has been followed andthe impugned order has been passed by the second respondent inaccordance with law and after following the due procedure. Hence,the respondents prayed for dismissal of the writ petition.5.On the above background pleadings, I have heardMr.S.M.Subramanian, learned counsel for the petitioner andMrs.Dakshayani Reddy, learned Government Advocate for the respondents.6.It is the foremost contention of the learned counsel forthe petitioner that as per rule 36 of the Tamil Nadu Civil Services https://hcservices.ecourts.gov.in/hcservices/ (Discipline and Appeal) Rules, the authority is empowered to revisethe order if it is the head of the department, within six months orwithin a reasonable time by the Government. In this case, theauthority, after a lapse of 6½ years, contrary to the rules, hasrevised the order on suo-motu revision. The said Rule is extractedhereunder. "(1)Notwithstanding anything contained in these rules-(i) the State Government; or(ii)the head of the department directly under theState Government, in the case of a Government servantserving in a department or office under the control ofsuch head of the department, or departments; or(iii)the appellate authority, other than the StateGovernment, within six months of the date of the orderproposed to be revised; or(iv)any other authority specified in this behalf bythe State Government by a general or special order,and within such time as may be prescribed in suchgeneral or special order; may at any time, either ontheir or its own motion or otherwise call for therecords of any inquiry and after consultation with theTamil Nadu Public Service Commission, where suchconsultation is necessary and revise any order madeunder these rules, may-(a) confirm, modify or set aside the order; or(b) confirm, reduce, enhance or set aside the penaltyimposed by the order, or impose any penalty where nopenalty has been imposed; or(c)remit the case to the authority which made the orderor to any other authority directing such authority tomake such further enquiry as it may consider proper inthe circumstances of the case; or (d)pass such other orders as they or it may deem fit;"(6a)In support of his contentions, the leaned counsel for thepetitioner has relied on a decision of this Court reported in 1998 1CTC 283 (A.THANGAVELU V. THE TAMIL NADU CIVIL SUPPLIES CORPORATION).Relevant portion is extracted thus:"9.The reading of the above Rule makes the positionclear that if the appellate authority wants to reviewthe order of the Regional Manager (Original authority)the same has to be done within six months from the https://hcservices.ecourts.gov.in/hcservices/ date of the order. In this case, as seen from theproceedings of the respondent in Rc.G-4/85431/89 dated16.11.1989 i.e., beyond the period of six monthsprescribed under sub-clause (iii) of the above saidRules. I have already mentioned that the date oforder and the review order dated 16.11.1989 has notbeen disputed by the learned counsel appearing for thepetitioner. In the light of the above factualposition, I am of the view that the first contentionof the learned counsel appearing for the petitioner iswell-founded. If the first contention is acceptedthere is no need to go into the other contentionsraised by the learned counsel appearing for thepetitioner. I am satisfied that the action of therespondent reviewing the order of the Regional Managerdated 12.4.1989 on 16.11.1989 is clearly prohibited asper sub-clause (iii) of the above referred Rule.Hence, I hold that the proceedings initiated by therespondents on 16.11.1989 is in violation of Rule 36(1)(iii) of the Rules. In those circumstances, asalready stated I need not go into the other factualposition. Accordingly, the impugned order based onthe proceedings of the respondent dated 16.11.1989 isquashed."(6b)The learned counsel has referred to yet another decision ofthis Court reported in 2009 (1) MLJ 1049 (N.BOSE V. STATE OF T.N.).In paras 13 and 14 it is held as under:"13.In the decision in Ibrahimpatnam Taluk Vyavasaya CoolieSangham v. K. Suresh Reddy AIR 2003 SC 3592:(2003)7 SCC 667also similar provision was considered by the Supreme Courtwith regard to the power of suo motu review. In paragraph12 and 13, it has been held as follows:"12. The learned single Judge has referred to andrelied on various decisions including the decisions ofthis Court as to how the use of the words "at any time"in sub-section (4) of Section 50-B of the Act should beunderstood. In the impugned order the Division Benchof the High Court approves and affirms the decision ofthe learned single Judge. Where a statute provides anysuo moto power of revision without prescribing anyperiod of limitation, the power must be exercisedwithin a reasonable time and what is "reasonable time:has to be determined on the facts of each case.13.In the light of what is stated above, we are of theview that the Division Bench of the High Court wasright in affirming the view of the learned single Judge https://hcservices.ecourts.gov.in/hcservices/ of the High Court that the suo moto power under sub-section (4) of Section 50-B of the Act is to beexercised within a reasonable time."14.From the above referred judgment, it is evidentthat suo moto power can be exercised within a reasonableperiod. What is a reasonable period, depends upon eachand every case and as stated supra, in this case, thesecond respondent passed the order in the year 2000 andbased on the seniority, the petitioner is eligible to beincluded in the panel for the promotion to the post ofDistrict Educational Officer and therefore, greatprejudice is cased to the petitioner due to the delay ininitiation of suo moto power by the first respondent.Hence, the impugned order passed by the first respondentexercising suo moto power under Rule 36 of the Tamil NaduCivil Services (Disciplinary and Appeal) Rules, after alapse of about seven years is found unreasonable andconsequently, the impugned order of punishment enhancingthe punishment from one of warning to that of withholdingincrement for one year without cumulative effect is setaside. It is the specific case of the petitioner as wellas the respondents that only due to the currency of thesaid punishment, the petitioner was not given the promotedpost of District Educational Officer, as he is otherwiseeligible to the post as per his seniority. The same isalso made clear in the Letter No.8353/A1/2007-17, dated31.8.2007 of the first respondent. Hence, Admittedly, thepetitioner's junior V.Natarajan was given promotion, byorder, dated 30.7.2007, hence, the petitioner is eligibleto be promoted as District Educational Officer and therespondents are bound to pass revised orders regarding thepetitioner's promotion as District Educational Officer." 7.On the other hand, the learned Government Advocate for therespondents would contend that the Additional Registrar (MPD), Officeof the Registrar of Cooperative Societies, Chennai on inspectionfound that as aforesaid in the disciplinary case considering thegravity of charges and the punishment awarded to the petitioner wasinsufficient and therefore, directed the concerned authority to sendthe records and files to the Registrar of Co-operative Societies foronward transmission to the Government, who is the competent authorityto take revision under Rule 36 and after following the due procedureand revise the punishment of censure into that of stoppage ofincrement for six months without cumulative effect and there is noinfirmity in the the said order passed by the revisional authority.8.I have carefully examined the abovesaid submissions of thelearned counsel on either side and perused the material documents andthe relevant rules in question. https://hcservices.ecourts.gov.in/hcservices/

9.In this case, the petitioner is a Junior Assistant and acharge memo was issued on 30.7.1998 on the allegation that he hadtaken a xerox copy of the proceedings and filed the same before theTribunal and also for a charge that he has not performed his duty intime. He submitted his explanation and after holding an enquiry, theauthority competent to impose the punishment awarded the punishmentof "censure" on 26.5.2000. However, the Additional Registrar(Marketing, Planning and Development) of the Office of Registrar ofCo-operative Societies, Chennai reviewed the disciplinary cases.While giving remarks in the instant case he has stated thatconsidering the gravity of charges, the punishment awarded to thepetitioner was insufficient. Therefore, he directed the competentauthority to send the connected records and files to the Registrar ofCo-operative Societies for onward transmission to the Government, whois the competent authority to take a decision under Rule 36. Basedon that, the Government has revised the order and accordingly, theGovernment on examination of the entire records passed the order on30.5.2006 stating that if the disposing authority has taken itsdecision against the enquiry officer, he has to give a show causenotice to the delinquent officer to call for further explanation.But in this case, the said procedure had not been followed. Thesecond respondent has been directed to rectify the procedural flaw.Accordingly, the petitioner was given show cause notice on 20.09.2006and the petitioner has given his explanation on 05.10.2006. Byconsidering the merits of the case, the second respondent haddisposed of the charge memo on 30.7.1998 by giving the punishment ofstoppage of increment for six months without cumulative effect. Thesame was challenged without challenging the order of the revisionalauthority dated 30.5.2006 and according to the petitioner that orderwas not communicated to him.10.The question raised in this case is that the revisionalauthority with an inordinate delay of six and half years contrary torule 36 has taken suo-motu revision and passed the order revising thepunishment of 'Censure' to stoppage of increment for six monthswithout cumulative effect. The said order has not been communicated.Therefore, the Government has directed the second respondent tofollow the procedure and by issuing a show-cause notice and thenafter submitting the explanation by the petitioner the punishment wasimposed. In this case, the punishment of 'censure' was imposed onthe petitioner on 26.5.2000 and the revisional authority revised theorder on 30.5.2006. There was a delay in initiating suo-moturevision. The said order is not challenged by the petitioner. Thesecond respondent who is the competent authority who imposed theearlier punishment was called to pass the revised order as per thedirection of the revisional authority. It is settled propositionthat suo-motu power can be exercised within a reasonable period.What is the reasonable period depends upon each and every case. Thesecond respondent passed the order in the year 2000. After a lapseof six years based on the inspection of the Additional Registrar of https://hcservices.ecourts.gov.in/hcservices/ Co-operative Societies, the Government has revised the order andremittal proceedings was passed by the Government directing thesecond respondent to initiate further proceedings and to imposeappropriate punishment.11.The learned counsel for the respondents has vehementlycontended that in the absence of any challenge to the order of therevisional authority it may not be appropriate to interfere with suchorder and the second respondent is competent to pass that order asthere was a remission from the Government directing the secondrespondent to pass such an order and therefore, there is no infirmityin the order.12.The petitioner has challenged only the order of thecompetent authority who imposed the punishment as per the directionof the first respondent. In the impugned order, it is the revisionof the order of the revisional authority dated 30.5.2006 and therewas a revision under rule 36 based on which the second respondent haspassed the order. When such is the position, the power of therevisional authority to look into the matter after a period of sixyears and thereafter remitting the matter to the second respondent toconsider the same is affected by inordinate delay in proceeding withthe suo-motu revision and based on which the present impugned orderhas been passed. The inordinate delay has not been properly explainedby the respondents in their counter. The revision has to be taken upin an appropriate time or a reasonable time to be construed in themanner known to law. 13.Considering the circumstances of this case, that the orderof punishment of "Censure" was awarded in the year 2000 and the samehas been reviewed by the authority in the year 2006 and this factumof the inordinate delay in initiating the revision based on which theimpugned order has been passed vitiates the entire proceedings of therespondents and accordingly, the impugned order passed by the 2ndrespondent suffers from legal infirmity and the same is set aside. 14.The writ petition is allowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ salTo1.The Registrar of Co-operative SocietiesKilpaukChennai 102.The Joint Registrar of Co-operative SocietiesThiruvannamalai RegionThiruvannamalai3.The Deputy Registrar of Co-operative SocietiesCheyyarThiruvannamalai District1 cc To Mr.S.M.Subramaniam, Advocate, SR.59348W.P.NO.4139/2007 SSK(CO)sra 8.12.2009