G. Jothivelu v. The District CollectorNamakkal2

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.06.2007CORAMTHE HON’BLE MR. JUSTICE S.J. MUKHOPADHAYA&THE HON'BLE MR. JUSTICE V. DHANAPALANW.A. No.406 of 2007 & M.P. No.1 of 2007G. JothiveluAppellant/Petitionervs.1The District CollectorNamakkal2The District Revenue OfficerNamakkal3The Revenue Divisional OfficerNamakkal4The TahsildarRasipuramNamakkal DistrictRespondents/RespondentsWrit Appeal filed under Clause 15 of the Letters Patentchallenging the order dated 16.02.2007 passed by a learned SingleJudge of this Court in W.P. No.5600 of 2007. Presented to thisCourt under Article 226 of the Constitution of India to issue awrit of Certiorarified Mandamus calling for the records of theorders, passed by the third respondent in Proceedings Na.Ka.No.3719/05/A1 dated 29.12.2006 and quash the same as illegal andconsequently direct the third respondent to reinstate thepetitioner as Village Administrative officer of MangalapuramVillage.For appellantMr. K. Shahul HameedFor respondents Mr. G. Sankaran, AGP (Writs)- - - - - https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTV. DHANAPALAN, J.The challenge in this writ appeal is to the order dated16.02.2007 passed by a learned Single Judge of this Court in W.P.No.5600 of 2007 whereby and whereunder, the order of removal fromservice of the appellant/petitioner passed by the RevenueDivisional Officer, Namakkal, the third respondent herein, hasbeen confirmed.2.The necessary facts leading to this writ appeal aredetailed as under:a.The appellant/petitioner worked as a VillageAdministrative Officer in Mangalapuram Village (which is hisnative village), Rasipuram Taluk, Namakkal District from15.09.2004 and his father had owned certain extent of landsin that village and had also constructed a temple in thoselands which were wrongly classified as Government porombokelands. Based on a representation from his father, a detailedenquiry had been conducted by the Tahsildar who hadrecommended issue of patta to his father and cancellation ofpatta issued favouring the intruders. In pursuance of thesettlement made by his father, the District Revenue Officer,the second respondent, ordered issuance of patta in favour ofthe petitioner based on which the Tahsildar, the fourthrespondent had issued patta Nos.14 and 843. Based on these,the appellant/petitioner had also paid land tax and hehimself being the Village Administrative Officer, had madeentry recording the collection of land tax for his own lands.While so, the appellant/petitioner was suspended from serviceon 29.04.2005 alleging that he had tampered with theGovernment records and his representation to the RevenueDivisional Officer to set aside his suspension order bore nofruit.b.Meanwhile, since his lands were utilised by theBlock Development Officer for public purpose, a writ petitionin W.P.No.30142 of 2005 came to be filed by theappellant/petitioner in which he got a favourable order ofinterim injunction and his order of suspension also wasrevoked subject to continuation of departmental proceedings.As the Block Development Officer started constructing apublic toilet on the petitioner's land though the order ofinterim injunction was in force, the appellant/petitionerfiled a Contempt Petition annoyed by which, he was once againsuspended on 23.11.2005 without assigning any reason. https://hcservices.ecourts.gov.in/hcservices/ c.In W.P. No.39384 of 2005 filed by theappellant/petitioner, the suspension order was stayed and hewas subsequently posted to another village. In W.P. No.19370of 2006 filed by the appellant/petitioner on the ground thatno charge memo was issued for the second suspension, thisCourt had directed the third respondent to dispose of thedepartmental enquiry on or before 31.10.2006. Further, theappellant/petitioner had filed yet another writ petition inW.P. No.45005 of 2006 to direct the third respondent torelieve him from the charges in which this Court had orderedto complete the enquiry and pass orders on the Charge Memoagainst the appellant/petitioner on or before 31.12.2006after giving adequate opportunity to the appellant/petitionerto examine the witnesses, viz., the Tahsildar and theDistrict Revenue Officer. d.In reply to the show cause notice dated 08.12.2006asking him to appear for an enquiry before the thirdrespondent on 18.12.2006 which was based on the report of theEnquiry Officer, the appellant/petitioner had written thatsuch Enquiry Report is not valid since the enquiry wasconducted without examining witnesses, that too, withoutserving the Enquiry Report on him which was served only lateralong with another show cause notice dated 21.12.2006. Noopportunity was provided to him to examine witnesses, despitethe direction given by this Court to this effect and thisbeing the position, he had received on 04.01.2007, the orderdated 29.12.2006 removing him from service and hence, he hadfiled the writ petition which has been dismissed by thelearned Single Judge as already stated in the beginning andhence, the present appeal.3.Heard Mr. K. Shahul Hameed, learned counsel for theappellant/petitioner and Mr. G. Sankaran, learned AdditionalGovernment Pleader (Writs) for the respondents.4.The main stand taken by the counsel for theappellant/petitioner is that though this Court had directed therespondents to give adequate opportunity to theappellant/petitioner to examine the witnesses, the enquiryconducted not complying with such direction of this Court and thattoo without furnishing him with a copy of the Enquiry Report, isnot a valid one and on this ground itself, the writ petition oughtto have been allowed by the learned Single Judge.5.Rebutting the above, the Additional Government Pleaderappearing for the respondents has contended that the learnedSingle has taken cognizance of this aspect and has categoricallyheld that the appellant/petitioner was simply sending letters https://hcservices.ecourts.gov.in/hcservices/ instead of appearing in person for enquiry and that since therespondents were to dispose of the enquiry proceedings before thedate stipulated by this Court, i.e. 31.12.2006, the impugned ordercame to be passed and these findings of the learned Single Judgedo not call for any intervention. He has further contended thatthe appellant/petitioner should have first exhausted the statutoryappeal remedy available to him under the rules challenging theorder of removal from service passed by the third respondentherein, before rushing to this Court to file the writ petition.6.We have perused the order under challenge before us aswell as the order of removal of the appellant/petitioner which wasimpugned in the writ petition and also the relevant records. 7.It is seen that in the order of the learned Single Judgewhich is under challenge before us, the learned Single Judge hasproceeded to deal with the matter based on the order of thedisciplinary authority, namely, the third respondent herein. Now,the question before us is whether the learned Single Judge iscorrect in doing so when the appellant/petitioner has bye-passedthe statutory appeal remedy available to him before the DistrictRevenue Officer, the second respondent. Therefore, rather thangoing into the merits of the case, we proceed on this footing.8.No doubt, the main grievance of the appellant/petitioneris that he ought to have been afforded an opportunity of hearingtwo witnesses, viz., the District Revenue Officer and theTahsildar. In this regard, he had resorted to writing letters tothe third respondent and it is seen from the records that thesetwo witnesses have been asked to be present for the enquiry on26.12.2006 and the appellant/petitioner too has been kept apprisedof this vide second show cause notice dated 21.12.2006. But, theappellant/petitioner had not chosen to appear in person for theenquiry but had continued with a persisting demand, firstly, forthe supply of the enquiry report for the purpose of facilitatinghim to defend his case and secondly, to examine two witnesses.The two aspects, viz., affording opportunity to theappellant/petitioner and the third respondent's conclusion ex-parte, are undoubtedly matters for adjudication by the secondrespondent, the District Revenue Officer who is the appellateauthority. But, admittedly, the appellant/petitioner has notchosen to exhaust the appeal remedy to put forth his case. Had hetaken the matter before the appellate authority, the latter wouldhave certainly looked into these two aspects and in fact, there isevery possibility, though not a certainty, that the appellateauthority would have considered these aspects, taking cognizanceof the direction of this Court in W.P. No.45005 of 2006 dated22.11.2006, in and by which the Enquiry Officer has been directedto give adequate opportunity to the appellant/petitioner to https://hcservices.ecourts.gov.in/hcservices/ examine the witnesses required to be examined to prove hisinnocence. Further, it has also been made clear in this Court'sdirection that no further time would be given. 9.In that view of the matter, the stand taken by theappellant/petitioner in approaching this Court in haste withoutexhausting the statutory appeal remedy and insisting upon thisCourt to pass orders on merits in the writ petition, does notsound proper. In fact, there are a number of instances where theappellate authority, in matters involving departmentalproceedings, had interfered with the order of the disciplinaryauthority and reduced the proportionality of the punishment andhad also remitted the matter to the Enquiry Officer in the eventof some irregularities found in the enquiry conducted by him or incase of non-application of mind by the disciplinary authority.Therefore, we are not in agreement with the approach of theappellant/petitioner in bye-passing the statutory appeal remedyavailable to him under the rules. No doubt, this appeal remedy canbe bye-passed; but, it can be only in rarest of rare cases andthis is not a fit case for the appellant/petitioner to bye-passthe effective and efficacious alternative statutory appeal remedyavailable to him. Thus, looking from any angle, this Court feelsthat this is a case in which the appeal remedy has to be firstexhausted by the appellant/petitioner. In view of this finding ofours, we are of the considered opinion that the learned SingleJudge ought to have directed the appellant/petitioner to exhausthis appeal remedy first. Instead, the learned Single Judge hasproceeded to go into the merits of the case, which, in ouropinion, is not proper. Therefore, without going into the meritsof the case, we are setting aside that portion of the order of thelearned Single Judge insofar as deciding the case by going intoits merits. Accordingly, we direct the appellant/petitioner tomove the appellate authority, viz., the second respondent forredressal of his grievance, within a period of four weeks from thedate of receipt of a copy of this order. 10.In this context, it is made clear that the period ofpendency of this writ petition before this Court need not be takeninto account for the purpose of limitation while theappellant/petitioner proceeds to exhaust the statutory appealremedy before the appellate authority. It is also made clear thatthe appellate authority should decide the case independentlywithout being influenced by the order of the learned Single Judgein the writ petition which is impugned before us. https://hcservices.ecourts.gov.in/hcservices/ With the above directions, the writ appeal is allowed inpart. No costs. Consequently, connected M.P. is closed.cadSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1The District CollectorNamakkal2The District Revenue OfficerNamakkal3The Revenue Divisional OfficerNamakkal4The TahsildarRasipuramNamakkal District+ 1 cc to the Government Pleader, SR No.36027+ 1 cc to Mr. K. Shahul Hameed, Advocate, SR No.36204judgment inW.A. No.406 of 2007NG(CO)SR/29.6.2007