V. Vaiyapuri & Ors. v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 18.1.2011CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition Nos.11927 to 11929, 21371 and 30026 of 2008V.Vaiyapuri. ... Petitioner in WP No.11927 of 2008 C.Karuppannan. ... Petitioner in WP No.11928 of 2008 T.Srirangan. ... Petitioner in WP No.11929 of 2008 G.Madhaiyan. ... Petitioner in WP No.21371 of 2008 C.Karuppannan. ... Petitioner in WP No.30026 of 2008 vs.1.Government of Tamil Nadu, represented by Secretary to Government, Environment and Forests Department, Fort St. George, Chennai-600 009.2.The Principal Chief Conservator of Forests, Panagal Buildings, Chennai-600 015. ... Respondents 1 and 2 in all the W.Ps. 3.Soil Conservation Officer, M.S.C.S. Division, Salem – 636 007. ... Third Respondent in W.P.No.21371 of 2008Writ Petition No.11927 of 2008 is filed under Article 226 of theConstitution of India praying to issue a Writ of CertiorarifiedMandamus, calling for the records of the first respondent relating toG.O.(D)No.90, Environment and Forests (FR.9B) Department, dated17.4.2008, to quash the same and to issue consequential directions tothe respondents to include the name of the petitioner in the panel for2007-2008 for promotion as Forest Ranger in the appropriate placetherein and to promote him with retrospective effect from the date ofpromotion of his immediate junior with all consequential benefits. https://hcservices.ecourts.gov.in/hcservices/ Writ Petition No.11928 of 2008 is filed under Article 226 of theConstitution of India praying to issue a Writ of CertiorarifiedMandamus, calling for the records of the first respondent relating toG.O.(D)No.89, Environment and Forests (FR.9B) Department, dated17.4.2008, to quash the same and to issue consequential directions tothe respondents to include the name of the petitioner in the panel for2007-2008 for promotion as Forester in the appropriate place thereinand to promote him with retrospective effect from the date ofpromotion of his immediate junior with all consequential benefits. Writ Petition No.11929 of 2008 is filed under Article 226 of theConstitution of India praying to issue a Writ of CertiorarifiedMandamus, calling for the records of the first respondent relating toG.O.(D)No.91, Environment and Forests (FR.9B) Department, dated17.4.2008, to quash the same and to issue consequential directions tothe respondents to include the name of the petitioner in the panel for2007-2008 for promotion as Forester in the appropriate place thereinand to promote him with retrospective effect from the date ofpromotion of his immediate junior with all consequential benefits. Writ Petition No.21371 of 2008 is filed under Article 226 of theConstitution of India praying to issue a Writ of CertiorarifiedMandamus, calling for the records of the first respondent relating toG.O.(D)No.88, Environment and Forests (FR.9B) Department, dated17.4.2008, to quash the same and to issue consequential directions tothe respondents to grant Selection Grade to the petitioner in the postof Ranger and to consider him for promotion to the post of AssistantConservator of Forests. Writ Petition No.30026 of 2008 is filed under Article 226 of theConstitution of India praying to issue a Writ of CertiorarifiedMandamus, calling for the records relating to the proceedings inPro.No.AB1/55820/2007 dated 29.4.2008 issued by the second respondent,quash the same to the limited extent of non-selection of thepetitioner in the said panel and to issue consequential direction tothe respondents to include the name of the petitioner in the panel forpromotion for the year 2007-2008 in the appropriate place therein andpromote him as Forester with retrospective effect from the date ofpromotion of his immediate junior with consequential benefits.For petitioner in all the W.Ps. : Mr.M.RaviFor respondents in all the W.Ps. : Mr.S.N.Kirubanandham, Special Government Pleader (Forest). https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERWrit Petition No.11927 of 2008 is filed praying to issue a Writof Certiorarified Mandamus, calling for the records of the firstrespondent relating to G.O.(D)No.90, Environment and Forests (FR.9B)Department, dated 17.4.2008, to quash the same and to issueconsequential directions to the respondents to include the name of thepetitioner in the panel for 2007-2008 for promotion as Forest Rangerin the appropriate place therein and to promote him with retrospectiveeffect from the date of promotion of his immediate junior with allconsequential benefits. 2. Writ Petition No.11928 of 2008 is filed praying to issue aWrit of Certiorarified Mandamus, calling for the records of the firstrespondent relating to G.O.(D)No.89, Environment and Forests (FR.9B)Department, dated 17.4.2008, to quash the same and to issueconsequential directions to the respondents to include the name of thepetitioner in the panel for 2007-2008 for promotion as Forester in theappropriate place therein and to promote him with retrospective effectfrom the date of promotion of his immediate junior with allconsequential benefits. 3. Writ Petition No.11929 of 2008 is filed praying to issue aWrit of Certiorarified Mandamus, calling for the records of the firstrespondent relating to G.O.(D)No.91, Environment and Forests (FR.9B)Department, dated 17.4.2008, to quash the same and to issueconsequential directions to the respondents to include the name of thepetitioner in the panel for 2007-2008 for promotion as Forester in theappropriate place therein and to promote him with retrospective effectfrom the date of promotion of his immediate junior with allconsequential benefits. 4. Writ Petition No.21371 of 2008 is filed praying to issue aWrit of Certiorarified Mandamus, calling for the records of the firstrespondent relating to G.O.(D)No.88, Environment and Forests (FR.9B)Department, dated 17.4.2008, to quash the same and to issueconsequential directions to the respondents to grant Selection Gradeto the petitioner in the post of Ranger and to consider him forpromotion to the post of Assistant Conservator of Forests. 5. Writ Petition No.30026 of 2008 is filed praying to issue aWrit of Certiorarified Mandamus, calling for the records relating tothe proceedings in Pro.No.AB1/55820/2007 dated 29.4.2008 issued by thesecond respondent, quash the same to the limited extent of non-selection of the petitioner in the said panel and to issueconsequential direction to the respondents to include the name of thepetitioner in the panel for promotion for the year 2007-2008 in theappropriate place therein and promote him as Forester with https://hcservices.ecourts.gov.in/hcservices/ retrospective effect from the date of promotion of his immediatejunior with consequential benefits.6. The relief sought for in the first four writ petitions isidentical. Insofar as the fifth Writ Petition No.30026 of 2008 isconcerned it is in respect of a relief, subject to the result of theWrit Petition No.11928 of 2008 filed challenging the punishment.Hence, all the five writ petitions are taken up together and disposedof by this common order.7. The petitioners, viz., Mr.V.Vaiyapuri, Forester;Mr.C.Karuppannan, Forest Guard; Mr.Srirangan, Forest Guard;G.Madhaiyan, Forest Ranger are alleged to have demanded and acceptedbribe from Forest Offenders. The occurrence in all these cases tookplace on 24.11.1994 and all the four persons were charged with underRule 17(b) of the Tamil Nadu Civil Services (discipline and Appeal)Rules. An enquiry officer was appointed and the enquiry was completedon 28.2.2000. The enquiry officer gave his reports stating that thecharges were not proved in his proceedings dated 20.3.2000. TheDisciplinary Authority, disagreed with the enquiry officer's reportand gave all the petitioners an opportunity to give theirexplanations. To the show cause notice issued by the DisciplinaryAuthority differing with the findings of the enquiry officer dated2.4.2001, all the petitioners have given their explanations in August2001. Thereafter, after a period of nearly seven years, separatefinal orders have been passed in respect of each individuals by theGovernment, rejecting the enquiry officer's report and holding thatall the four persons are guilty of the charges alleged. Thepunishment as follows was imposed:- (i) The punishment imposed in respect of the petitionerMr.Vaiyapuri, as per G.O.(D) No.90 Environment and Forests (FR.9B)dated 17.4.2008 is as follows:-@,e;neh;tpid. rk;ge;jg;gl;l Mtz';fs; kw;Wk;jkpH;ehL muR gzpahsh; njh;thizaf; fUj;J Mfpatw;Wld;kPz;Lk; ghprPyid bra;J. jpU tp/itahg[hp. tdth;. kPJepU:gzkhd Fw;wr;rhl;Lf;F jz;lidahf jw;nghJs;s gjtpepiyapypUe;J ,uz;L Mz;LfSf;F gjtp ,wf;fk;bra;ag;gl;Lk;; kPz;Lk; mg;gjtpia mila[k;nghJ Cjpacah;tpid 2 Mz;LfSf;F epWj;jp itf;fyhk; vdt[k; Kot[ bra;J muR mt;thnw MizapLfpwJ/@(ii) The punishment imposed in respect of the petitionerMr.C.Karuppannan, as per G.O.(D) No.89 Environment and Forests(FR.9B) dated 17.4.2008 is as follows:- https://hcservices.ecourts.gov.in/hcservices/ @,e;neh;tpid. rk;ge;jg;gl;l Mtz';fs; kw;Wk;jkpH;ehL muR gzpahsh; njh;thizaf; fUj;J Mfpatw;Wld;kPz;Lk; ghprPyid bra;J. jpU rp/fUg;gz;zd;.tdf;fhg;gghsh;. kPJ epU:gzkhd Fw;wr;rhl;Lf;F jz;lidahfjw;nghJs;s gjtp epiyapypUe;J ,uz;L Mz;LfSf;F gjtp ,wf;fk; bra;ag;gl;Lk;; kPz;Lk; mg;gjtpia mila[k;nghJCjpa cah;tpid 2 Mz;LfSf;F epWj;jp itf;fyhk; vdt[k;Kot[ bra;J muR mt;thnw MizapLfpwJ/@(iii) The punishment imposed in respect of the petitionerMr.R.Srirangan, as per G.O.(D) No.91 Environment and Forests (FR.9B)dated 17.4.2008 is as follows:-@,e;neh;tpid. rk;ge;jg;gl;l Mtz';fs; kw;Wk;jkpH;ehL muR gzpahsh; njh;thizaf; fUj;J Mfpatw;Wld;kPz;Lk; ghprPyid bra;J. jpU o/rPu';fd;. tdf;fhg;gghsh;. kPJepU:gzkhd Fw;wr;rhl;Lf;F jz;lidahf jw;nghJs;s gjtpepiyapypUe;J ,uz;L Mz;LfSf;F gjtp ,wf;fk;bra;ag;gl;Lk;; kPz;Lk; mg;gjtpia mila[k;nghJ Cjpacah;tpid 2 Mz;LfSf;F epWj;jp itf;fyhk; vdt[k; Kot[ bra;J muR mt;thnw MizapLfpwJ/@(iv) The punishment imposed in respect of the petitionerMr.Madhaiyan, as per G.O.(D) No.88 Environment and Forests (FR.9B)dated 17.4.2008 is as follows:-@,e;neh;tpid. rk;ge;jg;gl;l Mtz';fs; kw;Wk;jkpH;ehL muR gzpahsh; njh;thizaf; fUj;J Mfpatw;Wld;kPz;Lk; ghprPyid bra;J. jpU khijad;. rufh; kPjhdepU:gzkhd Fw;wr;rhl;Lf;F jz;lidahf mtiu jw;nghJs;sgjtp epiyapypUe;J ,uz;L Mz;LfSf;F gjtp ,wf;fk;bra;Jk; kPz;Lk; mg;gjtpia mila[k;nghJ Cjpa cah;tpid 2Mz;LfSf;F epWj;jp itf;fyhk; vdt[k; Kot[ bra;J muRmt;thnw MizapLfpwJ/@Challenging the above four Government Orders, the petitioners inW.P.Nos.11927 to 11929 and 21371 of 2008 have filed the writpetitions. The petitioner in W.P.No.30026 of 2008, who is also thepetitioner in W.P.No.11928 of 2008 has filed the writ petitionchallenging the consequential order passed in proceedingsPro.No.AB1/55820/2007 dated 29.4.2008 issued by the second respondent https://hcservices.ecourts.gov.in/hcservices/ whereby he was denied service benefits.8. Learned counsel appearing for the writ petitioners in all thewrit petitions raised the following contentions:-(i) The Show cause notice dated 2.4.2001 issued by the DisciplinaryAuthority differing with the enquiry officer's findings showsthe mind set of the authority holding the petitioners guilty ofthe charges even before the explanation is submitted. Thedirection to give an explanation is an empty formality, in otherwords, the Disciplinary Authority has already prejudged the issueand therefore, the respondents have acted with bias. (ii) To the show cause notice issued by the Disciplinary Authority inletter dated 2.4.2001, petitioners submitted their explanationsin August, 2001. Thereafter, there is an unexplained and enormousdelay of 7 years in concluding the proceedings. This delayvitiates the proceedings. (iii) There is no discussion on merits of the allegation or theexplanation given. In the impugned Government Orders exceptnarration of the charge memo, the explanation, the enquiryofficer's report and the disagreement by the DisciplinaryAuthority, there is no discussion on merits of the charge, theevidence of witnesses to conclude the allegation of delinquency.The impugned Government Orders, holding the petitioners as guiltyof the charges, resulting in imposition of the punishment as aboveis without application of mind, bereft of reasons and therefore,it is the pre-functionary and arbitrary order. On this premisethe impugned proceedings are challenged.9. Heard Mr.S.N.Kirubanandham, learned Special Government Pleader(Forests) appearing for the respondents, who vehemently contended thatthe delay is because of the voluminous of records that was consideredin all the cases. The views of the Public Service Commission wasnecessary to proceed in the matter as explained in the counter-affidavit and the delay due to administrative cause should not be thereason to let off persons charged with serious delinquencies.Therefore, only on the ground of delay the impugned proceedings neednot be set aside. 10. The plea with regard to the merits of the disagreement by theDisciplinary Authority on the enquiry officer's report is an issuewhich should have been considered by the Disciplinary Authority whilepassing the final order. Unfortunately, as rightly pointed out by thelearned counsel for the petitioners, the impugned Government Orders ineach one of the cases suffer from arbitrariness and total non-application of mind. There is no discussion as to the merits of thecharges framed against the individual petitioners and their https://hcservices.ecourts.gov.in/hcservices/ explanations. The impugned orders also do not give any reason tosupport the view as to why the Disciplinary Authority disagrees withthe enquiry officer's report. This vitiates the impugned proceedingsas there is absolute lack of reasons to support the finding of guilt.11. It is well established principle in law that AdministrativeAuthority exercising judicial or quasi-judicial functions is requiredto record reasons for its decision. In S.N.Mukherjee – v. Union ofIndia reported in AIR 1990 Supreme Court 1984, the Hon'ble SupremeCourt held in paragraphs 35, 38 and 39 as follows:-"35. Reasons, when recorded by anadministrative authority in an order passed by itwhile exercising quasi-judicial functions, wouldno doubt facilitate the exercise of itsjurisdiction by the appellate or supervisoryauthority. But the other considerations, referredto above, which have also weighed with this Courtin holding that an administrative authority mustrecord reasons for its decision are of no lesssignificance. These considerations show that therecording of reasons by an administrativeauthority serves a salutary purpose, namely, itexcludes chances of arbitrariness and ensures adegree of fairness in the process of decisions-making. The said purpose would apply equally toall decisions and its application cannot beconfined to decisions which are subject toappeal, revision or judicial review. In ouropinion, therefore, the requirement that reasonsbe recorded should govern the decisions of anadministrative authority exercising quasi-judicialfunctions irrespective of the fact whether thedecision is subject to appeal, revision orjudicial review. It may, however, be added thatit is not required that the reasons should be aselaborate as in the decision of a Court of law.The extent and nature of the reasons would dependon particular facts and circumstances. What isnecessary is that the reasons are clear andexplicit so as to indicate that the authority hasgiven due consideration to the points incontroversy. The need for recording of reasons isgreater in a case where the order is passed at theoriginal stage. The appellate or revisionalauthority, if it affirms such an order, need notgive separate reasons if the appellate orrevisional authority agrees with the reasonscontained in the order under challenge." https://hcservices.ecourts.gov.in/hcservices/ "38. The object underlying the rules ofnatural justice "is to prevent miscarriage ofjustice" and secure "fair play in action". Aspointed out earlier the requirement aboutrecording of reasons for its decision by anadministrative authority exercising quasi-judicialfunctions achieves this object by excludingchances of arbitrariness and ensuring a degree offairness in the process of decision-making.Keeping in view the expanding horizon of theprinciples of natural justice, we are of theopinion, that the requirement to record reason canbe regarded as one of the principles of naturaljustice which govern exercise of power byadministrative authorities. The rules of naturaljustice are not embodied rules. The extent oftheir application depends upon the particularstatutory framework whereunder jurisdiction hasbeen conferred on the administrative authority.With regard to the exercise of a particular powerby an administrative authority including exerciseof judicial or quasi-judicial functions thelegislature, while conferring the said power, mayfeel that it would not be in the larger publicinterest that the reasons for the order passed bythe administrative authority be recorded in theorder and be communicated to the aggrieved partyand it may dispense with such a requirement. Itmay do so by making an express provision to thateffect as those contained in the AdministrativeProcedure Act, 1946 of U.S.A. and theAdministrative Decisions (Judicial Review) Act,1977 of Australia whereby the orders passed bycertain specified authorities are excluded fromthe ambit of the enactment. Such an exclusion canalso arise by necessary implication from thenature of the subject matter, the scheme and theprovisions of the enactment. The public interestunderlying such a provision would outweigh thesalutary purpose served by the requirement torecord the reasons. The said requirement cannot,therefore, be insisted upon in such a case.""39. For the reasons aforesaid, it must beconcluded that except in cases where therequirement has been dispensed with expressly orby necessary implication, an administrativeauthority exercising judicial or quasi-judicial https://hcservices.ecourts.gov.in/hcservices/ functions is required to record the reasons forits decision."The above decision will squarely apply to the facts of the presentcase.12. In view of the above decision of the Apex Court, this Courthas no hesitation to come to a conclusion that the impugned GovernmentOrders challenged in the first four writ petitions deserve to be setaside and are accordingly set aside. The writ petition forconsequential benefits does not require adjudication as the petitioneragrees to proceed for other reliefs after the government finallydecides the delinquency issue on merits. Hence, the W.P.No.30026 of2008 is closed reserving the petitioner's right as above.13. Taking note of the fact that the occurrence in all the casestook place in the year 1994, the charge memo was issued in the year1998, the enquiry was completed on 28.2.2000, the enquiry reportwas filed in March, 2000 and the explanation to the DisciplinaryAuthorities show cause notice was given in August, 2001, theGovernment needs to decide the issue objectively and pragmaticallywithin a time frame so as to avoid the plea of prejudice and hardshipthat has been rightly pointed out by the petitioners' counsel. It isalso to be noted that in the case of Mr.Srirangan and Mr.Karuppannan,the Tribunal has given a direction to respondent department toconclude the proceeding at the earliest and that order was passed inthe year 2003. Keeping this in mind, the Government is directed torehear the matters after affording the petitioners or theirauthorised representatives an opportunity of hearing and conclude theproceedings on or before 28.1.2011. The time limit fixed by thisCourt is based on the plea made by the petitioners' counsel that oneof the petitioners is likely to be retire on 31st January, 2011. 14. All the writ petitions are ordered as above. No costs. Sd/Deputy Registrar/true copy/Sub Asst.RegistrartsTo1.The Secretary to Government, Environment and Forests Department, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2.The Principal Chief Conservator of Forests, Panagal Buildings, Chennai-600 015. 3.Soil Conservation Officer, M.S.C.S. Division, Salem – 636 007. +4ccs to Mr.M.Ravi,Advocate Sr3472+1cc to Spl. Govt. Pleader Sr 3411KU & KSJ(CO)km/19.1. W.P.Nos.11927 to 11929 and 21371 and 30026 of 2008