A.Krishnamurthy v. The Tahsidar, Panruti

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.10.2009 C O R A M :THE HONOURABLE MR.H.L.GOKHALE, THE CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE D.MURUGESANW.A.No.657 of 2009andM.P.No.1 of 20091.The Tahsidar,Panruti.2.The Revenue Divisional Officer,Revenue Department,Cuddalore. ... Appellants/Respondents -vs-A.Krishnamurthy ... Respondent/PetitionerPRAYER : Appeal filed under Clause 15 of the Letters Patent againstthe order dated 31.7.2008 made in W.P.No.12088 of 2008 on the file ofthis Court. Presented under Article 226 of the Constitution of Indiato issue a writ of certiorari calling for the records relating to thesecond respondent in his letter No.A6/1329/2000, dated 24.4.08 and toquash the same.For appellants : Mr.Raja Kalifulla, GP asstd.by Ms.Sneha, GA For respondent : Mr.S.Vijayakumar ***J U D G M E N T(JUDGMENT OF THE COURT WAS DELIVERED BY THE HONOURABLE THE CHIEF JUSTICE)Heard Mr.Raja Kalifulla, learned Government Pleader in supportof this appeal. Mr.S.Vijayakumar, learned counsel appears for therespondent. 2. The second appellant – Revenue Divisional Officer,Cuddalore, had issued a notice to the respondent under Rule 17(c) ofthe Tamil Nadu Civil Services (Discipline and Appeal) Rules (for https://hcservices.ecourts.gov.in/hcservices/ short 'the Rules'), asking him to show cause as to why he should notbe dismissed from service in view of his conviction in Special CaseNo.3 of 2000 under the Prevention of Corruption Act, 1988. Therespondent filed a petition to challenge that show-cause notice andhis principal submission was that the notice showed that theappellants were pre-determined in dismissing him from service. 3. In the impugned order, dated 31st July 2008, a learned SingleJudge of this Court has referred to a judgment and order passed bythis Court in W.P.No.3219 of 2007, dated 29th June 2007, whereinanother learned Single Judge had taken a view that the impugnedproceedings indicates that the disciplinary authority had made up itsmind and had decided to take a departmental action against the personconcerned. The aforesaid order passed in W.P.No.3219 of 2007 referredto yet another order passed by a learned Single Judge of this Courtin W.P.No.33248 of 2004, dated 08th November 2005, which was also onsimilar facts. The learned Single Judge, therefore, allowed the writpetition filed by the respondent herein and passed an orderpermitting the second appellant to issue a fresh show-cause notice tothe respondent without indicating his mind about the punishment to beinflicted upon him. Being aggrieved by this judgment and order, thepresent appeal has been filed by the appellants herein. 4. The learned Government Pleader appearing for the appellantspoints out that mere indication of the proposed punishment does notmean that the State is going to inflict that punishment. Thereference to such punishment is fully permissible under Rule 17(c)of the Rules. The relevant Rule, viz., Rule 17(c)(i) (1) reads asfollows:-''17(c) – Provision to be followed when a Governmentservant is convicted on a criminal charge:(i) (1) The requirements of sub-rule (b) shall notapply where it is proposed to impose on a manner of aservice any such penalty as is referred to clause (i) ofthat sub-rule on the basis of facts which have led tohis conviction in a criminal court (whether or not hehas been sentenced at once by such court to anypunishment); but he shall be given a reasonableopportunity of making any representation that he maydesire to make such representation if any, shall betaken into consideration before the order imposing thepenalty is passed."5. The learned counsel for the respondent, on the other hand,relied upon a judgment of this Court in the case of M.Devendran -vs-The Director, Tamil Nadu Fire and Rescue Services, Egmore, Tamil Nadureported in (2006) 1 MLJ 40, wherein after referring to this very https://hcservices.ecourts.gov.in/hcservices/ rule, a learned Single Judge has taken the view that such acommunication indicates a pre-judged approach to the things and,therefore, he had interfered into that communication. The learnedcounsel appearing for the respondent submitted that the order passedby the second appellant is contrary to the view taken by differentJudges of this Court and, therefore, the learned Single Judge wasright in taking the view that he has taken.6. As against this submission of the learned counsel for therespondent, the learned Government Pleader has drawn our attention tothe judgment of the Apex Court in Union of India and others -vs-Sunil Kumar Sarkar reported in (2001) 3 SCC 414, particularlyparagraph 8 thereof. In that matter, Rule 19 of the Central CivilServices (Classification, Control and Appeal) Rules, 1965 was therelevant rule. Similar submissions were canvassed before the ApexCourt and after referring to the relevant rules, the Apex Court hasin terms observed that the question of having a pre-determined minddoes not arise in such cases. All that a disciplinary authority isexpected to do under Rule 19 is to be satisfied that the officerconcerned has been convicted of a criminal charge and has been givena show-cause notice and reply to such show-cause notice, if any,should be properly considered before making any order under thisRule. The Court has observed that it will have to bear in mind thegravity of the conviction suffered by the Government servant in thecriminal proceedings before passing any order under Rule 19 tomaintain the proportionality of punishment.7. Having regard to the clear enunciation of law by the ApexCourt, in our view, the order passed by the learned Single Judgecannot be sustained. The appeal is, therefore, allowed and theimpugned order is quashed and set aside. However, there will be noorder as to costs. Consequently, the connected miscellaneous petitionis closed.8. The consequence of this order is that the respondent willhave the right of making a representation against the proposedpunishment. The learned Government Pleader points out that therespondent was served with the show-cause notice, dated 24th April2008 on 27th April 2008 and that the dismissal order had been passedon 12th May 2008. Now what is material to note is that the show-causenotice required the respondent to show cause within 15 days from thedate of receipt of that notice. If the show-cause notice is dated 24thApril 2008 and it is served on 27th April 2008, the day of servicewill have to be excluded and thereafter 15 days will have to becalculated, which will mean that the respondent had the right to makehis representation on or before 12th May 2008, which he has beendenied by passing the dismissal order on 12th May 2008. The respondenthad moved the High Court in the meanwhile and obtained a stay on 13thMay 2008. It is also material to note that this dismissal order had https://hcservices.ecourts.gov.in/hcservices/ been served on the respondent only on 16th May 2008. This being theposition, in our view, the consequence of the present order will haveto follow, namely, that the dismissal order will not survive. Therespondent will have the right of making a representation against theproposed notice as to why he should not be dismissed. He may make hisrepresentation within 15 days from today. The appellant State isexpected to consider it and then pass appropriate orders. Sd/-Asst.Registrar/true copy/Sub Asst.RegistrarjsTo1. The Tahsidar,Panruti.2. The Revenue Divisional Officer,Revenue Department,Cuddalore. W.A.No.657 of 2009 and M.P.No.1 of 2009 KSY {CO}TP/14.10.2009.