S.Thirunavukkarasu v. Government of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.04.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NOs.30509 and 30510 of 2006(O.A.Nos.567, 185 of 1997S.Thirunavukkarasu.. Petitioner in both the petitionsVs.Government of Tamil Nadurepresented by the Chief Secretary to Government, Public (Special-A) Department, Fort St. George, Chennai-9... Respondent in W.P.No.30509 of 2006 Government of Tamil Nadu, represented by the Secretary to Government,P & AR Department, Fort St. George, Chennai-9. .. Respondent in W.P.No.30510 of 2006W.P.No.30509 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating toG.O.Ms.No.1410, Public Special-A Department, dated 4.12.1996 (A-6)and after scrutiny thereof, direct the respondent to include thename of the applicant in the appropriate place in the impugned panelwith reference to his seniority in the feeder category of DeputySecretaries and give promotion to the applicant as Joint Secretary, from the date on which his immediate junior has been promoted as Joint Secretary, with all attendant , service and monetary benefits.W.P.No.30510 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarito call for the records relating to (1) G.O.(3D)No.8, P & AR (Q)Department, dated 22.6.1995 (A-5); and (2)G.O.(3D) No.3, P & AR (Q)Department, dated 28.2.1996 (A-7) and to quash the same. For Petitioner: Mr.K.V.AnandakrishnanFor Respondents: Mr.P.Gurunathan, GA https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERThe petitioner in both the writ petitions is the sameperson. He was working as Deputy Secretary to the Government in the Social Welfare Department. Just 7 months before his retirement, hefiled O.A.Nos.185 of 1997 and 567 of 1997 before the Tamil NaduAdministrative Tribunal. These two O.As. stood transferred to thiscourt on the abolition of the Tribunal and were renumbered asW.P.Nos.30509 and 30510 of 2006.

In The first O.A., the petitioner challenged the order ofthe Government G.O.(3D) No.8, P & AR Department, dated 22.6.1995 andG.O.(3D) No.3, P & AR Department dated 28.02.1996. By the order, dated 22.6.1995, the petitioner was issued with punishment ofcensure. The charge against the petitioner was that while he wasworking as Under Secretary to the Government, Animal HusbandryDepartment, he did not close the attendance and he attended theoffice late in as many as 16 days within a period of three months. After getting explanation from the Charge memo framed under Rule 17(a) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules, the said punishment was given to him. The explanation offered by thepetitioner was that his late comings were not intentional and beyondhis control. The respondent State rejected his explanation andobserved that he was given repeated oral warnings by the thenSecretary to Government.

As against the said order of punishment, the petitionerpreferred a review petition, dated 17.7.1995. The Governmentrejected the review petition by passing an order dated 28.02.1996.In doing so, the Government took the advice of the Tamil Nadu PublicService Commission. It is these two orders which are challenged inthe first O.A.

On notice from the Tribunal, the respondents have filed areply affidavit, dated 27.06.1997. In the reply affidavit, it wasstated that in terms of the office procedure that each UnderSecretaries to Government should sign the attendance registermaintained in his room and also close the attendance register byaffixing his initial at the end. The said register will have to besent to the Deputy Secretary/Joint Secretary by 10.15 a.m. Thepetitioner had thereby not only violated the office procedure, butalso did not keep himself as role model in doing so.

The Supreme Court in its judgment in CHAIRMAN & MANAGINGDIRECTOR, V.S.P. AND OTHERS Vs. GOPARAJU SRI PRABHAKARA HARI BABUreported in 2008 5 SCC 569 had held that the High Court exercisingpower under Article 226 in dealing with the proportionality of thepunishment is very limited. In paragraphs 20 and 21 of its judgment, it was held as follows: "20. The jurisdiction of the High Court in thisregard is rather limited. Its power to interfere withdisciplinary matters is circumscribed by well-knownfactors. It cannot set aside a well-reasoned order only https://hcservices.ecourts.gov.in/hcservices/ on sympathy or sentiments. (See Maruti Udyog Ltd. v. RamLal; State of Bihar v. Amrendra Kumar Mishra; SBI v.Mahatma Mishra4; State of Karnataka v. Ameerbi5; State ofM.P. v. Sanjay Kumar Pathak6 and Uttar Haryana BijliVitran Nigam Ltd. v. Surji Devi7.)21. Once it is found that all the proceduralrequirements have been complied with, the courts wouldnot ordinarily interfere with the quantum of punishmentimposed upon a delinquent employee. The superior courtsonly in some cases may invoke the doctrine ofproportionality. If the decision of an employer is foundto be within the legal parameters, the jurisdictionwould ordinarily not be invoked when the misconductstands proved. (See Sangfroid Remedies Ltd. v. Union of India.)"

Though the petitioner tried to argue that the Governmentdid not apply its mind independently, but was largely influenced bythe recommendations of the T.N.P.S.C., the records produced do notsubstantiate the same. The Supreme Court in its judgment in RAMGOPAL CHATURVEDI Vs. STATE OF MADHYA PRADESH reported in 1969 (2)SCC 240 had held as follows: "

It was argued that the impugned order wasinvalid as it was passed without consulting the StatePublic Service Commission under AAticle 320(3)(c) of the Constitution. There is no merit in this contention. Thecase of State of U.P. v. M.L. Srivastava1 decided thatthe provisions of Article 320(3)(c) were not mandatoryand did not confer any rights on the public servant andthat the absence of consultation with the State PublicService Commission did not afford him a cause of action. "Therefore, even if there was no consultation with the T.N.P.S.C., itwill not result in the petitioner attacking the non consultationprocess before this court. In the present case, the petitioner wassupplied with the copy of the advice given by the TNPSC along withthe penalty order. Therefore, the W.P.No.30510 of 2006 deserves tobe dismissed. 7. In W.P.No.30509 of 2006, the prayer is to challenge theG.O.Ms.No.1410, Public Special Department, dated 04.12.1996. Thepetitioner seeks inclusion of his name in the panel fit forpromotion to the post of Joint Secretaries to Government (NonI.A.S.) for the year 1996-97. The panel consists of 29 and thepetitioner's name has been omitted. Though the petitioner contendedthat his overall rating in the A.C.R. is very good for the relevantyear, that by itself cannot be a ground for getting promoted to thenext higher post. In the present case, the petitioner faced with acharge memo and also awarded a punishment of censure. Though it iscontended that a censure cannot operate as a bar for promotion, there is nothing wrong in the respondents taking into account theover all performance of the petitioner before including his name inthe promotion panel. Inasmuch as the petitioner was imposed with apunishment for his habitual late attendance, he cannot claim as a https://hcservices.ecourts.gov.in/hcservices/ matter of right that promotion should be given notwithstanding hisover all performance as observed by his superiors. Therefore, thisW.P. also deserves to be dismissed.

In the light of the above legal precedents and also thefactual matrix of the case, the writ petitions are misconceived anddevoid of merits. Accordingly, they are dismissed. However, thereshall be no order as to costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarvvkTo1.The Chief Secretary to Government, Government of Tamil Nadu Public (Special-A) Department, Fort St. George, Chennai-9.2.The Secretary to Government, Government of Tamil Nadu, P & AR Department, Fort St. George, Chennai-9.2 ccs to Mr.K.V. Anantha Krishnan, Advocate, SR. 16305, 16306W.P.NOS.30509 AND30510 OF 2006SSN (CO)kk 27/4