K.Manokaran v. Transport Department, Chepauk, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.03.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.4200 of 2010andM.P.NO.1 OF 2010K.Manokaran.. PetitionerVs.The Principal Secretary/Transport Commissioner,Transport Department,Chepauk,Chennai-600 005... RespondentThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records of the respondentin connection with the impugned letter No.53502/VB2/2008, dated23.11.2009 and 21.12.2009 and to quash the same and to furtherdirect the respondent to reinstate the petitioner into service andto regulate the period of employment as duty for all purposes asper ruling 6(ii) under Fundamental Rule 54 and grant him allconsequential service and monetary benefits. For Petitioner: Mr.K.Venkatramani, Senior Counsel for Mr.M.MuthappanORDERHeard Mr.K.Venkatramani, learned Senior Counsel appearing forMr.M.Muthappan. The petitioner has come forward to challenge anorder, dated 23.11.2009, wherein and by which the respondent hadplaced the petitioner under suspension under Rule 17(e)(4) of theTamil Nadu Civil Service (Discipline and Appeal) Rules. 2.The petitioner was working as a Motor Vehicle Inspector,Harur, Dharmapuri District. He was given a charge memo on09.04.2008. The charge against the petitioner was that while therewas a surprise check conducted on 31.3.2005 in the unit office atHarur by the Investigating authority, he was found in possessionof unaccounted money of Rs.1150/-. Since he did not give any valid https://hcservices.ecourts.gov.in/hcservices/ explanation, he was placed under suspension and was proceededdepartmentally. Thereafter, the petitioner was imposed with apenalty of compulsory retirement by the order of the TransportCommissioner, dated 17.7.2008. 3.The petitioner preferred a statutory appeal to the StateGovernment. The State Government, after consulting with TNPSC, byG.O.(D)No.933, Home Department, dated 16.9.2009 held that evenwithout an explanation to the charge memo, compulsory retirementorder was passed. Since the procedure for imposing the penaltyunder Rule 17(b) was not followed, the TNPSC opined that the finalorder passed against him can be cancelled and de nova proceedingsmay be initiated from the place where the defect had crept in.Accepting the said opinion, the Government cancelled the finalorder passed by the Transport Commissioner and gave direction toinitiate de nova proceedings. 4.It is pursuant to the same, the petitioner sought for aposting order in the post of Junior Assistant. However, therespondent by a communication, dated 23.11.2009 informed him thatsince de nova proceedings have to be initiated, his request forposting order cannot be granted. The petitioner's attention wasdrawn to Rule 17(e)(4) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. Rule 17(e)(4) reads as follows:"Where a penalty of dismissal, removal orcompulsory retirement from service imposed uponGovernment servant is set aside or declared orrendered void in consequence of or by adecision of a Court of Law and the disciplinaryauthority, on a consideration of thecircumstances of the case, decides to hold afurther inquiry against him on the allegationson which the penalty of dismissal, removal orcompulsory retirement was originally imposed,the Government servant shall be deemed to havebeen placed under suspension by the appointingauthority from the date of the original orderof dismissal, removal or compulsory retirementand shall continue to remain under suspensionuntil further orders."5.The petitioner once again sent a representation, statingthat since before the order of penalty was imposed on him, he wasnot kept under suspension, the said Rule cannot be invoked in hiscase. The petitioner was informed by letter, dated 21.12.2009 thatsince charge against the petitioner was not cancelled, he shall bedeemed to be under suspension. Therefore, the suspension willcontinue. 6.Mr.K.Venkatramani, learned Senior Counsel contended thatthe question of invoking Rule 17(e)(4) is inappropriate and thesaid rule will come into force only when the following two https://hcservices.ecourts.gov.in/hcservices/ contingencies. One was that the order must have been set aside bythe Court of Law. In the present case, the order was set aside bythe statutory appellate authority, which is not a Court. Thesecond submission was that the pre-requisite for keeping a personunder suspension after ordering a de nova enquiry was that theremust have been a suspension before imposition of penalty. However,Rule 17(e)(3) reads as follows:"Where a penalty of dismissal, removal orcompulsory retirement from service imposed upona Government servant under suspension is setaside in appeal or an review under these rulesand the case is remitted for further inquiry ofaction or with any other directions the orderof his suspension shall be deemed to havecontinued in force on and from the date of theoriginal order of dismissal, removal orcompulsory retirement and shall remain in forceuntil further orders."7.Alternatively the learned Senior Counsel submitted that itis a mechanical application of mind on the part of the respondentand they did not refer to correct rule, i.e. Rule 17(e)(3). Forinvoking the said rule 17(e)(3), he should have been kept undersuspension before the order of penalty. But, the argumentaddressed by the learned Senior Counsel cannot be countenanced bythis court. After the penalty order was set aside by the statutoryappellate authority, a de nova enquiry was ordered. It is not asif the petitioner's conduct has been found to be unblemished. 8.In the present case, the State Government had ordered forde nova enquiry only on account of a technical fault for notfollowing the procedure under Rule 17(b). Otherwise, the chargeagainst the petitioner was serious, for which he can always beplaced under suspension. In the present case, when the petitionersent a representation, dated 2.11.2009 to the respondent, hisdoubt was clarified by the competent authority on 23.11.2009. Thepetitioner's further representation, dated 7.12.2009 was onceagain clarified by the respondent on 21.12.2009. Therefore, theintention of the competent authority is to keep the petitionerunder suspension and not allowing him to restore to service onlyon account of his earlier penalty of compulsory retirement beingset aside on technical ground. 9.Even in case where a final order of punishment was setaside on technical ground, a person can be placed under deemedsuspension to facilitate further enquiry. Therefore, the conceptof deemed suspension or automatic suspension on account of certaincontingencies is not new to service rules. 10.In construing Rule 12(4) of Central Civil Services(Classification, Control & Appeal) Rules, 1957, the Supreme Courtin Khem Chand v. Union of India reported in 1963 Supp (1) SCR 229= AIR 1963 SC 687 held in paragraphs 16,18 and 19 as follows: https://hcservices.ecourts.gov.in/hcservices/ "16. Equally untenable is the appellant’snext contention that the impugned Rulecontravenes the provisions of Article 19(l)(f) ofthe Constitution. The argument is that as aresult of this Court’s decree the appellant had aright to his arrears of pay and allowances. Thisright constituted his property; and as the effectof the impugned Rule is that he would not, forsome time at least, get those arrears itrestricts his right. It may be conceded that theright to arrears of pay and allowancesconstituted property within the meaning ofArticle 19(l)(f) of the Constitution and further,that the effect of Rule 12(4) is a substantialrestriction of his right in respect of thatproperty under Art 19(l)(f). The question remainswhether this restriction is a reasonablerestriction in the interests of the generalpublic. No body can seriously doubt theimportance and necessity of proper disciplinaryaction being taken against government servantsfor inefficiency, dishonesty or other suitablereasons. Such action is certainly against theimmediate interests of the government servantconcerned; but is absolutely necessary in theinterests of the general public for serving whoseinterests the government machinery exists andfunctions. Suspension of a government servantpending an enquiry is a necessary part of theprocedure for taking disciplinary action againsthim. It follows, therefore, that when the penaltyof dismissal has been set aside but thedisciplinary authority decides to hold a furtherenquiry on the same facts against him a freshorder of suspension till the enquiry can becompleted, in accordance with law, is areasonable step of the procedure. We have nohesitation in holding, therefore, that insofar asRule 12(4) restricts the appellant’s right underArticle 19(1)(f) of the Constitution, it is areasonable restriction in the interests of thegeneral public. Rule 12(4) is therefore withinthe saving provisions of Article 19(6), so thatthere is no contravention of the constitutionalprovisions........18. This brings us to the attack on the Ruleon the basis of Article 14. According to MrSharma the result of the impugnet Rule is thatwhere a penalty of dismissal, removal orcompulsory retirement from service imposed on agovernment servant is set aside or declared or https://hcservices.ecourts.gov.in/hcservices/ rendered void in consequence of or by a decisionof a court of law and the disciplinary authoritydecides to hold a further enquiry against him onthe allegations on which the penalty wasoriginally imposed, the consequence will followthat the government servant shall be deemed tohave been placed under suspension from the dateof the original imposition of penalty, whereas nosuch consequence will follow where a similarpenalty is set aside not by a court of law butby, the departmental disciplinary authority.According to Mr Sharma, therefore, there is adiscrimination between a government servant thepenalty of dismissal, removal or compulsoryretirement on whom is set aside by a decision ofa court of law and another government servant asimilar penalty on whom is set aside on appeal bythe departmental disciplinary authority. Theargument however ignores the result of Rule 30(2)and Rule 12(3) of these Rules. Rule 30(2)provides inter alia that in the case of an appealagainst an order imposing any of the penaltiesspecified in Rule 13 i.e. the penalty ofdismissal, removal or compulsory retirement andcertain other penalties, the Appellate Authorityshall pass orders: “(i) setting aside, reducing,confirming or enhancing the penalty; or (ii)remitting the case to the authority which imposedthe penalty or to any other authority with suchdirection as it may deem fit in the circumstancesof the case.” Rule 12(3) provides that “where apenalty of dismissal, removal or compulsoryretirement from service imposed upon a governmentservant under suspension is set aside in appealor on review under these rules and the case isremitted for further enquiry or action or withany other directions, the order of his suspensionshall be deemed to have continued in force on andfrom the date of the original order of dismissal,removal or compulsory retirement and shall remainin force until further orders”. Where a penaltyof dismissal, removal or compulsory retirementimposed upon a government servant is set aside bythe departmental authority on appeal, it may ormay not order further enquiry; just as where asimilar penalty is set aside by a decision of acourt of law the disciplinary authority may ormay not direct a further enquiry. Where theAppellate Authority after setting aside a penaltyof dismissal, removal or compulsory retirementmakes an order under Rule 30(2)(ii) remitting thecase to the authority which imposed the penalty, https://hcservices.ecourts.gov.in/hcservices/ for further enquiry, Rule 12(3) will come intooperation and so the order of suspension which inalmost all cases is likely to be made where adisciplinary proceeding is contemplated or ispending shall be deemed to have continued inforce on and from the date of the original orderof dismissal and shall remain in force untilfurther orders. There is therefore no difference“worth the name between the effect of Rule 12(4)on a government servant the penalty of dismissal,removal or compulsory retirement on whom is setaside by a decision of a court of law and afurther enquiry is decided upon and the effect ofRule l2(4) on another government servant asimilar penalty on whom is set aside in appeal oron review by the departmental authority and afurther enquiry is decided upon. In both casesthe government servant will be deemed to be undersuspension from the date of the original order ofdismissal, except that where in a departmentalenquiry a government servant was not placed undersuspension prior to the date when the penalty wasimposed, this result will not follow, as Rule l2(3) would not then have any operation. It isentirely unlikely however, that ordinarily, agovernment servant will not be placed undersuspension prior to the date of his dismissal.Rule 12(1) provides that the appointing authorityor any authority to which it is subordinate orany other authority empowered by the President inthat behalf may place a government servant undersuspension: (a) where a disciplinary proceedingagainst him is contemplated or is pending, or (b)where a case against him in respect of anycriminal offence is under investigation or trial.Mr Sharma does not say that ordinarily any casesoccur where a government servant is visited witha penalty of dismissal, removal or compulsoryretirement, in a departmental proceeding, withoutthere being a previous order of suspension underthe provisions of Rulel 2(l) and we do not thinkany such case ordinarily occurs. Consequently,the effect of Rule 12(3) will be the same on agovernment servant a penalty of dismissal,removal or compulsory retirement on whom is setaside in appeal by the departmental authority asthe effect of Rule l2(4) on a government servanta similar penalty on whom is set aside by adecision of a court of law. The contention thatRule 12(4) contravenes Article 14 of theConstitution must therefore be rejected. https://hcservices.ecourts.gov.in/hcservices/

19. As we find that all the above attacks onthe validity of Rule l2(4) fail, the furtherattack on the Rule on the basis of Article 31(1)of the Constitution also necessarily fails. For,whatever deprivation of property may result fromRule l2(4) would be by authority of law-the lawbeing Rule l2(4)."11.The said Rule 12(4) was subsequently made as Rule 10(4) ofCCS(CCA) Rules. When the said rule came to be challenged, theSupreme Court upheld the constitutional validity of the said rulein Mahender Singh v. Union of India, reported in 1991 Supp (2) SCC127. The following passage found in paragraph 6 may be usefullyextracted below:"6. There are three requirements for theapplication of Rule 10(4); (i) the governmentservant is dismissed, removed or compulsorilyretired as a measure of penalty; (ii) thepenalty of dismissal, removal or compulsoryretirement is set aside or declared or renderedvoid by a decision of a court of law; (iii) thedisciplinary authority, decides to hold afurther inquiry against the government servanton the allegations on which the original orderof penalty was imposed. If these threerequirements are satisfied then the governmentservant shall be deemed to have been placedunder suspension by the appointing authorityfrom the date of original order of penalty ofdismissal, removal or compulsory retirement andhe shall continue to remain under suspensionuntil further orders."12.Thereafter, the very same rule was once again consideredby the Supreme Court in Nelson Motis v. Union of India reported in(1992) 4 SCC 711. In paragraph 10, the Supreme Court observed asfollows:"10......The cases which attract sub-rule(4), are thus those where the penalty imposedon the government servant is set aside ontechnical grounds not touching the merits ofthe case. Since at one stage the disciplinaryauthority records a finding on the chargesagainst the government servant, which is notupset on merits, the situation is entirelydifferent from that in the cases covered bysub-rule (3). The classification is thusfounded on an intelligible differentia, havinga rational relation to the object of the rulesand Rule 10 (4) has to be held asconstitutionally valid." https://hcservices.ecourts.gov.in/hcservices/

13.In the light of the above, the writ petition will standdismissed. However, there will be no order as to costs.Consequently, connected miscellaneous petition stands closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vvkToThe Principal Secretary/Transport Commissioner,Transport Department,Chepauk,Chennai-600 005.1 cc to mr.T. Ayngarabuabhu, Advocate. Sr. 146961 cc to Government Pleader, SR. 14513W.P.NO.4200 of 2010RB (CO)kk 9/3