V.Neelamegam v. The Principle Secretary to Government, Environment and Forest Department, Fort St. George, Chennai & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.04.2010CORAMTHE HONOURABLE Mr. JUSTICE T.RAJAW.P.No.24702 of 2008 andM.P.No.1 of 2008V.Neelamegam ... Petitioners Vs.

The Principle Secretary to Government, Environment and Forest Department, Fort St. George, Chennai – 9.

The Principle Chief Conservator of Forest, Panagal Building, Saidapet, Chennai – 15. ... RespondentsPRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorari to call for the records in pursuant to the impugned notice issued by the 1st respondent in letterNo.13177/V9A/03-11 dated 22.07.2008 and quash the same and pass such further orders. For Petitioner : Mr.S.M.SubramaniamFor Respondents: Mr.P.Sathish, GA (F)ORDERThe petitioner, V.Neelamegam, while working as Forester in Marandahalli Section, Palacode Range in the year 1988 and 1989,committed certain irregularities, like demanding a sum of Rs.1,000/-as illegal gratification, after detecting 5 head loads of bamboos in the house of Muttaikannan @ Muniappan. Therefore, the petitioner demanded a sum of Rs.1,000/- to release him without prosecution and subsequently, directed to pay a sum of Rs.200/-. The allegation is that he said to have received the illegal gratification of Rs.800/-on 05.12.88 at his residence in Marandahalli from one Muttaikannan https://hcservices.ecourts.gov.in/hcservices/ and out of that amount, he remitted a sum of Rs.50/- in the name of Muttaikannan in a manipulated forest case and eventually he derived apecuniary benefit of Rs.750/- in the above process. Based on the above allegations, he was charged indicating that he has received weekly mamool of Rs.70/- for about six months from one Krishnan fornot taking action against him for his illicit dealing with bamboos and, thereby, violated Rule 20 of Tamil Nadu Government ServantConduct Rules, 1973.2. The 3rd charge is to the effect that on 01.04.1989 at about7.00 hrs. at Vellisanthai Checkpost, Forest Guards secured oneTvl. Vel and Venkatesan, while transporting bamboos in the top of abus owned by Good Luck Bus Service and seized bamboos and demanded asum of Rs.1,000/- for letting them free and thereby, received illegal gratification of Rs.600/- from the above said person and out of which the petitioner remitted only a sum of Rs.60/- in a fabricatedO.R.No.43/88-89 and thus derived a pecuniary benefit of Rs.540/-.

The 4th charge also says that the Accused Officer-I secure done Krishnan and Madesh, while transporting 500 bamboos at 6.20 am at Vellisanthai check post along with Accused Officers 3, 4 and 5 and threatened them and made a demand and accepted Rs.500/- as illegal gratification from Krishnan, out of which he remitted a sum ofRs.250/- as compounding fees on 19.05.89 and thus derived a pecuniary benefit of Rs.250/- with the connivance of other Accused Officers.

After issuance of the charge memo, a charge sheet was issued on 11.07.1995 and the Tribunal for disciplinary proceedings conducteda detailed enquiry and finally came to the conclusion that the charges 1, 3 and 4 were held proved, while charge No.2 was held unproved. On receipt of the notice and the report, the petitioner submitted his explanation on 04.04.2002, but, not being satisfied with the said explanation, the 2nd respondent, Principle ChiefConservator of Forest, Chennai, passed final orders on 17.12.2002imposing a punishment of stoppage of increment for one year without cumulative effect. After the conclusion of disciplinary proceedingson 17.02.2002 and after a lapse of 6 years, the 1st respondent issued the impugned notice in proceedings dated 22.07.2008, stating that the punishment already imposed by proceedings dated 17.12.2002 is not sufficient and, therefore, the impugned suo-moto notice proposed to impose the punishment of removal from service. Challenging the saidsuo-moto notice, the petitioner has filed the present writ petition.

The prime contention raised by the learned counsel appearing for the petitioner, Mr.S.M.Subramaniam is that, after conclusion of disciplinary proceedings after a delay of 6 years, the 1st respondent cannot exercise the suo-moto power for inflicting an enhanced punishment on the petitioner, that too, by clearly indicating the proposed punishment of removal from service. When the notice was issued with pre-meditation, it is evident that the 1st respondent has https://hcservices.ecourts.gov.in/hcservices/ clearly made up his mind. Therefore, it was contended that a post ofdecisional hearing likely to be given by the 1st respondent after issuing the suo-moto notice, indicating his mind to impose the punishment of removal would be nothing but an illusory exercise and thus, is violative of principles of natural justice.

In support of his submission, he relied upon a judgement of this Court reported in 2009 (1) CTC 529 (N.Bose Vs. The State of Tamil Nadu and another), wherein, this Court dealt with inordinate delay of 6 years in exercising suo-moto power to enhance punishment and also another judgment of the Apex Court reported in 2007 (1) CTC844 (Siemens Ltd. Vs. State of Maharashtra and others), wherein it has been held that once a decision is taken by an authority exercising suo-moto power indicating his tentative punishment, thereis a tendency to uphold it and a representation may not yield any fruitful purpose. On that basis, prayed for quashing the impugned order by allowing the present writ petition.

Per contra, learned counsel appearing for the respondents submits that the petitioner has given room for serious misbehaviour by demanding and accepting mamool for smuggling bamboos illegally. Therefore, the disciplinary proceedings were initiated by the 1strespondent in his letter dated 26.10.93. The Tribunal for Disciplinary Proceedings framed 4 charges against the petitioner incase No.DE No.45/94, dated 11.07.95 and conducted detailed enquiry and, thereafter, the Tribunal for disciplinary proceedings, in its report, has given its finding that 3 charges were proved and one charge remain unproved. Thereafter, the 2nd respondent, after examining the charges, along with findings of the Tribunal for disciplinary proceedings and further explanation of the petitioner on the basis of the findings of the Tribunal, awarded the punishment of postponement of increment for one year without cumulative effect in Proceedings No.T1/45082/97, dated 17.12.2002.

Heard the learned counsel appearing on either side and perused the materials available on record.

For the alleged irregularities, 4 charges were framed against the petitioner. The Tribunal for disciplinary proceedings, after framing charges, including charges relating to demanding and accepting illegal gratification, conducted detailed enquiry and finally found the petitioner guilty of three charges. Therefore, the2nd respondent, after examining the charges and the findings of the Tribunal for disciplinary proceedings and the explanation offered by the petitioner on the findings of the Tribunal, finally awarded the punishment of postponement of increment for one year without cumulative effect in Proceedings No.T1/45082/97, dated 17.12.2002.The 1st respondent, having seen that the punishment awarded to petitioner by the 2nd respondent, being not commensurate with the charges found proven by the Tribunal for disciplinary proceedings andas he has empowered to take suo-moto revision under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, proposed toaward a punishment of removal from service under Rule 8 of the TamilNadu Civil Services (Discipline and Appeal) Rules to the petitioner for the proven charges. Therefore, the 1st respondent issued showcause notice by exercising suo-moto power to the petitioner on the proposed punishment.

Now, let me see, whether the exercise of suo-moto power, after a period of 6 years, is legally viable or not. A similar issue came up before this Court in the case of N.Bose Vs. The State of Tamil Nadu and antoher reported in 2009 (1) CTC 529, wherein a person holding additional charge of Principal of District Institute of Education and Training, was charged under Rule 17(a) on allegation of lapse in procedure in selection of students. On enquiry, considering the said lapse as a minor lapse committed due to oversight, he was issued with warning with further condition that the same shall not be repeated in future. Subsequently, the petitioner was included in the panel. However, when promotion order was issued, the petitioner'sname was not found on the ground of issuance of the impugned order, wherein the punishment of warning was enhanced by modification to that of withholding increment for one year without cumulative effectin exercise of powers conferred under Rule 36 of Tamil Nadu CivilServices (Discipline and Appeal) Rules.