M.Panneerselvam v. The District Collector, Thiruvarur District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.02.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.2081 of 2010andM.P.NO.1 of 2010M.Panneerselvam.. PetitionerVs.1.The District Collector, Thiruvarur District.2.The Revenue Divisional Officer, R.D.O. Office, Mannargudi Taluk, Thiruvarur District... RespondentsThis 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 from the secondrespondent pertaining to the impugned suspension orderR.C.A1/562/2009 dated 29.01.2010 and its consequential orderNo.R.C.A1/562/2009, dated 31.01.2010 passed by the second respondentand to quash the same and consequently, to direct the respondents topermit the petitioner to retire and provide all necessary retirementbenefits including pension.For Petitioner : Mr.P.VijendranFor Respondents: Mrs.C.K.Vishnupriya, AGPORDERHeard both sides. This Writ petition challenges the order,dated 29.01.2010 and the order dated 31.1.2010 under Rule 56(1)(c)of the Fundamental Rules issued by the second respondent. Thepetitioner though had reached the age of superannuation by31.1.2010, he was not allowed to retire so as to enquire into gravecharges and in public interest. The petitioner was informed that hewill be paid sustenance allowance equivalent to pension. https://hcservices.ecourts.gov.in/hcservices/

2.The grievance of the petitioner was that the order is illegaland is liable to be set aside on the ground that it was contrary tothe sprit of G.O.Ms.No.144, P&AR Department, dated 8.6.2007.3.The order suspending the petitioner on the last day isattacked on the following ground: that two persons belonging toruling party made a complaint against the petitioner. The secondrespondent the Revenue Divisional Officer, Mannargudi Talukconducted an enquiry on 05.02.2009. The petitioner gave his reply.Thereafter, the petitioner was transferred to Malavarayanallur. Thesecond respondent (Revenue Divisional Officer) sent a memo on19.1.2010 to Tahsildar, Mannargudi asking him to enquire and submita report. The Tahsildar made enquiries with the complainant and theEx-President of Nallikottai village. He sent a report. The belatedaction taken by the second respondent was to prevent the petitionerfrom retiring from service on his reaching the age of superannuationon 31.1.2010. 4.The petitioner informed his Association of GovernmentEmployees belonging to SC/ST Employees. Its office bearers gave arepresentation to the District Revenue Officer. A further complaintwas made to the higher authorities. It is the stand of thepetitioner that the second respondent belonged to Vanniar community.He was targeting the officials belonging to Scheduled Caste andhence the false charge made against the petitioner. Though such anallegation was made, the second respondent was not made as a partyin his individual capacity in order to prove the so-calledallegation of mala fide. 5.It was also stated that the petitioner was suspended on29.1.2010 under Rule 17(e) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. In the suspension order, dated29.1.2010, it was stated as follows:"Whereas charges under rule 17(b) of theTamil Nadu Civil Services (Discipline and Appeal)Rules have been framed againstThiru.M.PanneerSelvam Village AdministrativeOfficer, Malavarayanallur and formerly VillageAdministrative Officer 31 Thalikkottai VillageMannargudi Taluk, for the reasons of willfullyincluded the Government poramboke lands of Riverporamboke and Channel poramboke lands andwillfully committed more extent than the actualextent of the survey number in the beneficiarylist and willfully included the survey number forgrant of relief amount which is not available inthe Village 'A' register and distributing reliefamount for crop damages during Heavy Rain-2008-09in respect of Nallikkotai Vilage hamlet of 31.Thalikkottai Revenue Village Mannargudi Talukwhich results a loss of Revenue to Governmentamounting Rs.68,438/- (Rupees Sixty Eight thousand https://hcservices.ecourts.gov.in/hcservices/ four hundred and Thirty Eight only)."6.Pursuant to the order of suspension, a further order came tobe passed on 31.1.2010 preventing the petitioner from retiring fromservice under Rule 56(1)(c). 7.The case of the petitioner was that 31.1.2010 was Sunday andit was served only on 1.2.2010 by affixure and the notice was pastedon the door of his house. The petitioner tore of the said noticefrom the wall and filed it before this court as the originalimpugned order. Therefore, it was contended that both the orderswere illegal and they were passed only with a view to prevent thepetitioner from getting superannuated. 8.Mr.P.Vijendran, counsel appearing for petitioner referred tothe several decisions in support of his contentions. The counselinsisted that they are all decisions of the Supreme Court and arebinding on this court under Article 141 of the Constitution ofIndia. If they are not followed, it will amount to this courtdenying justice to his client. Therefore, this court decided torefer to the judgments cited by him, though all of them were out ofmark.9.The first decision of the Supreme Court is in State ofMaharashtra Vs. M.H.Mazumdar reported in 1988 (2) SCC 52. It is acase where proceedings were initiated under the Bombay CivilServices Rules after retirement. Under those rules, the StateGovernment had power to reduce or withhold pension in theproceedings initiated against a Government servant even after hisretirement. Considering the facts and circumstances of the case, theSupreme Court held that reduction of 50% of the pension was tooharsh and disproportionate to the misconduct. It is not clear as tohow this judgment has any relevance. In the present case, the poweris exercised under Rule 56(1)(c) of Fundamental Rules. In the eventof Government finds the petitioner guilty, he can even be imposedwith an appropriate penalty. At present, this court is not dealingwith a proceedings under Rule 9 of the Tamil Nadu Pension Rules. 10.The counsel also relied upon the judgment of the SupremeCourt in Deputy Registrar, Co-operative Societies, Faizabad Vs.Sachindra Nath Pandey and others reported in 1995 (3) SCC 134. It isnot clear as to how the said judgment helps the case of thepetitioner. On the other hand, it was held that a long delay itselfcannot be a ground to set aside an enquiry initiated against aGovernment servant. The writ petition cannot be allowed unless theversion of events alleged against a government servant found notproved and that the statement of government servant found to beproved. 11.The counsel placed reliance upon the judgment of the SupremeCourt in State of W.B. Vs. Haresh C.Banerjee and others reported in2006 (7) SCC 651. That was a case where the power to initiate action https://hcservices.ecourts.gov.in/hcservices/ under the relevant pension rule for recovering the pecuniary losscaused from the pension payable to the government servant. TheSupreme Court upheld the validity of Rule 10(1) of the West BengalServices (Death-cum-Retirement Benefit) Rules, 1971. In thatcontext, the Supreme Court held that pension is not a bounty payableon the sweet will and pleasure of the Government. The right toreceive pension is a valuable right of a government servant. Thisjudgment has no relevance to the case on hand. 12.The counsel also relied upon the judgment of the SupremeCourt in S.K. Dua v. State of Haryana reported in (2008) 3 SCC 44.In that case, the only question arose was that if there was anydelay in settling retirement dues, whether a person was eligible toget interest on the delay in settling dues. The Supreme Court heldthat interest on delay in payment of retirement benefits flows fromArticles 14,19 and 21 of the Constitution of India. The facts of thecase as set out in paragraph 10 may be usefully extracted below:"10. According to the appellant, he had alwaysacted in the interest of the Government and savedpublic exchequer by inviting the attention tomalpractices committed by high-ranking officers. Asa measure of revenge against the appellant, charge-sheets were issued, but after considering theexplanation submitted by the appellant, allproceedings against him were dropped. In view ofexoneration of the appellant, the Government oughtto have paid interest on retiral benefits whichwere given to him after long time. As per theguidelines and administrative instructions issuedby the Government, the appellant was entitled tosuch benefit with interest. The High Court ought tohave allowed the writ petition of the appellant andought to have awarded those benefits....."13.Insofar as the petitioner's case is concerned, the stage forgetting pension is yet to reach. It is only the stage of suspensionpending further action. 14.The decision of the Supreme Court in Secretary, ForestDepartment and others Vs. Abdur Rasul Chowdhury reported in 2009 (7)SCC 305 cited by the learned counsel for the petitioner once againdo not help the case of the petitioner. The thrust of the case asfound in paragraphs 15 and 16 may be usefully extracted below:"15. In the present case, while the delinquentemployee was in service, the departmental enquiryproceedings had been instituted by the employer byissuing the charge memo and the proceedings couldnot be completed before the government servantretired from service on attaining the age ofsuperannuation and in view of Rule 10(1) of the1971 Rules, the employer can proceed with thedepartmental enquiry proceedings though thegovernment servant has retired from service for https://hcservices.ecourts.gov.in/hcservices/ imposing only punishment contemplated under theRules.16. The next issue is with regard to delay inconcluding disciplinary proceedings. In our viewthe delay in concluding the domestic enquiryproceedings is not fatal to the proceedings. Itdepends on the facts and circumstances of eachcase. The unexplained protracted delay on the partof the employer may be one of the circumstances innot permitting the employer to continue with thedisciplinary enquiry proceedings. At the same time,if the delay is explained satisfactorily then theproceedings should be permitted to continue."Once again it is not clear as to how this judgment can have anyrelevance to the case on hand. 15.The decisions relied on by the counsel for the petitionerwere referred to here only because the learned counsel contendedthat these judgments are binding on this court and that the courtmust necessarily refer to these judgments before passing any orderin the writ petition.16.There is no quarrel over the propositions of law laid downby the Supreme Court. The question is whether those judgments haveany application to the case instituted by the petitioner. 17.In this context, it is necessary to refer to the decision ofthe Supreme Court in T.A. Quereshi (Dr.) v. CIT reported in (2007) 2SCC 759 and it was held that cases must be decided on legalprinciples. It is useful to refer the following passage found inparagraph 16, which is as follows:"16.....However, cases are to be decided bythe court on legal principles and not on one’sown moral views. Law is different from morality,as the positivist jurists Bentham and Austinpointed out.18.The Supreme Court in Rajbir Singh Dalal (Dr.) v. ChaudhariDevi Lal University reported in (2008) 9 SCC 284 held in paragraph40 as follows:40. As held in Bharat Petroleum Corpn. Ltd. v. N.R.Vairamani24 a decision cannot be relied on withoutdisclosing the factual situation. In the samejudgment this Court also observed: (SCC pp.584-85,paras 9-12)“9. Courts should not place reliance on decisionswithout discussing as to how the factual situationfits in with the fact situation of the decision onwhich reliance is placed. Observations of courtsare neither to be read as Euclid’s theorems nor asprovisions of the statute and that too taken out oftheir context. These observations must be read in https://hcservices.ecourts.gov.in/hcservices/ the context in which they appear to have beenstated. Judgments of courts are not to be construedas statutes. To interpret words, phrases andprovisions of a statute, it may become necessaryfor judges to embark into lengthy discussions butthe discussion is meant to explain and not todefine. Judges interpret statutes, they do notinterpret judgments. They interpret words ofstatutes; their words are not to be interpreted asstatutes. In London Graving Dock Co. Ltd. v.Horton25 (AC at p.761), Lord MacDermot observed:(All ER p.14 C-D)‘The matter cannot, of course, be settledmerely by treating the ipsissima verba ofWilles, J. as though they were part of anAct of Parliament and applying the rules ofinterpretation appropriate thereto. This isnot to detract from the great weight to begiven to the language actually used by thatmost distinguished judge.’10. In Home Office v. Dorset Yacht Co. Ltd.26 (AllER p.297g-h) Lord Reid said, ‘Lord Atkin’s speech …is not to be treated as if it were a statutorydefinition. It will require qualification in newcircumstances.’ Megarry, J. in Shepherd Homes Ltd.v. Sandham (No. 2)27, (All ER p.1274d-e) observed:‘One must not, of course, construe even a reservedjudgment of Russell, L.J. as if it were an Act ofParliament;’ and, in British Railways Board v.Herrington28 Lord Morris said: (All ER p.761c)‘There is always peril in treating the wordsof a speech or judgment as though they arewords in a legislative enactment, and it isto be remembered that judicial utterancesare made in the setting of the facts of aparticular case.’11. Circumstantial flexibility, one additional ordifferent fact may make a world of differencebetween conclusions in two cases. Disposal of casesby blindly placing reliance on a decision is notproper.12. The following words of Lord Denning in thematter of applying precedents have become locusclassicus:‘Each case depends on its own facts and aclose similarity between one case andanother is not enough because even a singlesignificant detail may alter the entireaspect, in deciding such cases, one shouldavoid the temptation to decide cases (as https://hcservices.ecourts.gov.in/hcservices/ said by Cardozo) by matching the colour ofone case against the colour of another. Todecide therefore, on which side of the linea case falls, the broad resemblance toanother case is not at all decisive.***Precedent should be followed only so far asit marks the path of justice, but you mustcut the dead wood and trim off the sidebranches else you will find yourself lost inthickets and branches. My plea is to keepthe path of justice clear of obstructionswhich could impede it.’ ”(emphasis supplied)"19.Let this Court examine the cases which have a bearing on theissues raised herein. The Supreme Court in its decision in State ofU.P. v. Brahm Datt Sharma reported in (1987) 2 SCC 179 dealt withthe power of the Court in dealing with a charge memo at the showcause stage and the following passage found in paragraph 9 will makethe position clear:9. The High Court was not justified inquashing the show cause notice. When a show causenotice is issued to a government servant under astatutory provision calling upon him to showcause, ordinarily the government servant mustplace his case before the authority concerned byshowing cause and the courts should be reluctantto interfere with the notice at that stage unlessthe notice is shown to have been issued palpablywithout any authority of law. ‘The purpose ofissuing show cause notice is to affordopportunity of hearing to the government servantand once cause is shown it is open to theGovernment to consider the matter in the light ofthe facts and submissions placed by thegovernment servant and only thereafter a finaldecision in the matter could be taken.Interference by the court before that stage wouldbe premature, the High Court in our opinion oughtnot have interfered with the show cause notice.20.The Supreme Court vide judgment in Special Director v. Mohd.Ghulam Ghouse reported in (2004) 3 SCC 440 in para 5 observed asfollows:5. This Court in a large number of caseshas deprecated the practice of the High Courtsentertaining writ petitions questioning legalityof the show-cause notices stalling enquiries asproposed and retarding investigative process tofind actual facts with the participation and in https://hcservices.ecourts.gov.in/hcservices/ the presence of the parties. Unless the HighCourt is satisfied that the show-cause noticewas totally non est in the eye of the law forabsolute want of jurisdiction of the authorityto even investigate into facts, writ petitionsshould not be entertained for the mere askingand as a matter of routine, and the writpetitioner should invariably be directed torespond to the show-cause notice and take allstands highlighted in the writ petition. Whetherthe show-cause notice was founded on any legalpremises, is a jurisdictional issue which caneven be urged by the recipient of the notice andsuch issues also can be adjudicated by theauthority issuing the very notice initially,before the aggrieved could approach the court.Further, when the court passes an interim orderit should be careful to see that the statutoryfunctionaries specially and specificallyconstituted for the purpose are not denuded ofpowers and authority to initially decide thematter and ensure that ultimate relief which mayor may not be finally granted in the writpetition is not accorded to the writ petitionereven at the threshold by the interim protectiongranted.21.Further, the Supreme Court in the judgment relating to Unionof India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 inparas 13 to 16 held as follows:13. It is well settled by a series ofdecisions of this Court that ordinarily nowrit lies against a charge-sheet or show-causenotice vide Executive Engineer, Bihar StateHousing Board v. Ramesh Kumar Singh (1996) 1SCC 327, Special Director v. Mohd. GhulamGhouse (2004) 3 SCC 440, Ulagappa v.Divisional Commr., Mysore (2001) 10 SCC 639,State of U.P. v. Brahm Datt Sharma(1987) 2 SCC179, etc.14. The reason why ordinarily a writpetition should not be entertained against amere show-cause notice or charge-sheet is thatat that stage the writ petition may be held tobe premature. A mere charge-sheet or show-cause notice does not give rise to any causeof action, because it does not amount to anadverse order which affects the rights of anyparty unless the same has been issued by aperson having no jurisdiction to do so. It isquite possible that after considering the https://hcservices.ecourts.gov.in/hcservices/ reply to the show-cause notice or afterholding an enquiry the authority concerned maydrop the proceedings and/or hold that thecharges are not established. It is wellsettled that a writ petition lies when someright of any party is infringed. A mere show-cause notice or charge-sheet does not infringethe right of anyone. It is only when a finalorder imposing some punishment or otherwiseadversely affecting a party is passed, thatthe said party can be said to have anygrievance.15. Writ jurisdiction is discretionaryjurisdiction and hence such discretion underArticle 226 should not ordinarily be exercisedby quashing a show-cause notice or charge-sheet.16. No doubt, in some very rare andexceptional cases the High Court can quash acharge-sheet or show-cause notice if it isfound to be wholly without jurisdiction or forsome other reason if it is wholly illegal.However, ordinarily the High Court should notinterfere in such a matter.22.In the decision in Dy. Registrar, Co-op. Societies v.Sachindra Nath Pandey reported in (1995) 3 SCC 134, the SupremeCourt held that the delay in framing charge cannot be a ground tointerfere with the charge memo and the relevant passage found inparagraph 7 of the said judgment is extracted below:7. On a perusal of charges, we find thatthe charges are very serious. We are,therefore, not inclined to close the matteronly on the ground that about 16 years haveelapsed since the date of commencement ofdisciplinary proceedings, more particularlywhen the appellant alone cannot be heldresponsible for this delay......23.Further, in Secretary to Government, Prohibition & ExciseDepartment v. L. Srinivasan reported in (1996) 3 SCC 157, theSupreme Court has held that the charge cannot be quashed only on theground of delay and any finding recorded by the Court will prejudicethe enquiry. The Supreme Court has also pulled up the member of theAdministrative Tribunal for having interfered with the charge memoas if the Tribunal is the appellate authority. The following passagefound in paragraph 3 of the said judgment makes the position veryclear:3.....We are informed that charge-sheetwas laid for prosecution for the offences ofembezzlement and fabrication of false recordsetc. and that the offences and the trial of the https://hcservices.ecourts.gov.in/hcservices/ case is pending. The Tribunal had set aside thedepartmental enquiry and quashed the charge onthe ground of delay in initiation ofdisciplinary proceedings. In the nature of thecharges, it would take a long time to detectembezzlement and fabrication of false recordswhich should be done in secrecy. It is notnecessary to go into the merits and record anyfinding on the charge levelled against thecharged officer since any finding recorded bythis Court would gravely prejudice the case ofthe parties at the enquiry and also at thetrial. Therefore, we desist from expressing anyopinion on merit or recording any of thecontentions raised by the counsel on eitherside. Suffice it to state that theAdministrative Tribunal has committed grossesterror in its exercise of the judicial review.The member of the Administrative Tribunalappears to have no knowledge of thejurisprudence of the service law and exercisedpower as if he is an appellate forum dehors thelimitation of judicial review. This is one suchinstance where a member had exceeded his powerof judicial review in quashing the suspensionorder and charges even at the threshold. We arecoming across such orders frequently puttingheavy pressure on this Court to examine eachcase in detail. It is high time that it isremedied.24.The Supreme Court in Govt. of A.P. v. V. Appala Swamyreported in (2007) 14 SCC 49 held the parameters of interfering witha charge sheet on grounds of delay in paragraphs 12, 14 and 15 whichreads as follows:12. So far as the question of delay inconcluding the departmental proceedings asagainst a delinquent officer is concerned, inour opinion, no hard-and-fast rule can be laiddown therefor. Each case must be determined onits own facts. The principles upon which aproceeding can be directed to be quashed on theground of delay are:(1) where by reason of the delay, the employercondoned the lapses on the part of theemployee;(2) where the delay caused prejudice to theemployee. https://hcservices.ecourts.gov.in/hcservices/ Such a case of prejudice, however, is to bemade out by the employee before the inquiryofficer........14. Learned counsel appearing on behalf ofthe respondent, however, placed strong relianceon a decision of this Court in M.V. Bijlani v.Union of India(2006 (5) SCC 88). That case wasdecided on its peculiar facts. In that case,even the basic material on which departmentalproceedings could be initiated was absent. Thedepartmental proceedings were initiated after 6years and continued for a period of 7 years. Inthat fact situation, it was held that theappellant therein was prejudiced.15. Bijlani, therefore, is not anauthority and, in fact, as would appear fromthe decision in P.D. Agrawal4 for theproposition that only on the ground of delaythe entire proceedings can be quashed withoutconsidering the other relevant factorstherefor.25.The last argument that the impugned order was not served onthe petitioner before the last day of his service also cannot beaccepted. 26.In this context, it is necessary to refer to the judgment ofthe Supreme Court in U.P. State Sugar Corpn. Ltd. v. Kamal SwaroopTondon reported in (2008) 2 SCC 41. The following passage found inparagraph 40 may be usefully referred below:40. Considering the facts andcircumstances in their entirety, in ourconsidered opinion, the High Court was wrong inholding that the proceedings were initiatedafter the respondent retired and there was nopower, authority or jurisdiction with theCorporation to take any action against the writpetitioner and in setting aside the orderspassed against him. In our judgment,proceedings could have been taken for therecovery of financial loss suffered by theCorporation due to negligence and carelessnessattributable to the respondent employee. Theimpugned action, therefore, cannot be said tobe illegal or without jurisdiction and the HighCourt was not right in quashing the proceedingsas also the orders issued by the Corporation.The appeal, therefore, deserves to be allowedby setting aside the order of the High Court.27.The Supreme Court in National Textile Corpn. (M.P.) Ltd. v. https://hcservices.ecourts.gov.in/hcservices/ M.R. Jadhav reported in (2008) 7 SCC 29 has categorically statedthat the actual communication of an order of suspension is notnecessary and it is enough if the order goes out of control of theappointing authority. The following passage found in paragraphs 23and 24 may be usefully extracted below:23. In MCD v. Qimat Rai Gupta9 this Court opined:(SCC p.319, para 27)“27. An order passed by a competent authoritydismissing a government servant from servicesrequires communication thereof as has beenheld in State of Punjab v. Amar Singh Harika6but an order placing a government servant onsuspension does not require communication ofthat order. (See State of Punjab v. KhemiRam.)”24. Therefore, there cannot be any doubt whatsoeverthat communication of the acceptance of offer wasnecessary. An internal noting does not constitute acommunication. Even in a case of order ofsuspension, only when the case goes out of thecontrol of the appropriate authority, actualcommunication may not be necessary. 28.In the light of the above discussions, the Writ Petition isclearly misconceived. There are no grounds warranting interferencewith the impugned orders at this stage. Hence this writ petitionshall stand dismissed. No costs. Connected Miscellaneous petition isclosed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vvkTo1.The District Collector, Thiruvarur District.2.The Revenue Divisional Officer, R.D.O. Office, Mannargudi Taluk, Thiruvarur District.1 cc to Mr.P. Vijendran, Advocate, SR. 7413W.P.NO.2081 of 2010GGK (CO)kk 12/2