A.Sengodan v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.08.2009CORAMTHE HONOURABLE Mr. JUSTICE M.M.SUNDRESHW.P.No.14791 OF 2008A.Sengodan ... PetitionerVs.1. Government of Tamil Nadu rep., 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. ... RespondentsPetition under Article 226 of the Constitution of India for theissuance of Writ of certiorarified mandamus, call for the recordsrelating to the First Respondent orders in Government Lr.No.1585/FR.9A/2003-18, Environment and Forests Department, dated14.05.2008, quash the same and to direct the Respondents to includethe name of the Petitioner in the ensuing panel for promotion asForest Ranger, in the appropriate place therein and to promote him.For Petitioner: Mr. M. RaviFor Respondents: Mr. P. Sathish Government Advocate (F)O R D E RThe Petitioner is working as a Forester in the ForestDepartment. A proceedings was initiated against the petitioner forcertain act alleged to have been committed by the Petitioner. ACharge memo has been issued on 02.06.1999 against the petitioner bythe Tribunal for Disciplinary Proceedings, Salem in T.D.P case No.1of 1999. In the said proceedings, findings have been given by theTribunal on 30.05.2001. Thereafter, an explanation was called forfrom the petitioner by the second respondent on 29.01.2002 enclosinga copy of the proceedings of the Tribunal for DisciplinaryProceedings. On the receipt of the said show cause notice, thepetitioner had submitted his detailed explanation on 22.04.2002.After considering the said explanation submitted by the petitioner,the disciplinary authority, namely second respondent herein, has https://hcservices.ecourts.gov.in/hcservices/ awarded a punishment of Censure. The Tribunal has also exoneratedthe petitioner in so far as charges 2 and 3 are concerned which havebeen confirmed by the second respondent.2. In so far as, the charge No.1 is concerned, the petitionerhas been charged that he has deliberately not filed a complaintagainst one Mr.Arunachalam by receiving a illegal gratification ofsum of Rs.6,500/-. The second respondent has considered the relevantmaterials including the findings of the Tribunal as well as theevidence of P.Ws.1 to 3 before coming to the conclusion. The secondrespondent has also given a finding that the evidence of P.W.1 namelyMrs. Janasakthi, W/o.Arunachalam shows the involvement of the saidperson in earlier forest offences and was also arrested and releasedon bail. Therefore, the second respondent has given a finding, thatthe said statement has to be taken in an appropriate spirit. Thesecond respondent has also observed that there are contradictions andconflicting version of P.Ws who happened to be close relatives ofthe offender. However, for the above reasons, an order of Censurehas been passed by the second respondent.3. The petitioner has not chosen to challenge the same and saidpunishment has become final. As per the rules, the said punishmentwas implemented. As such, the petitioner's name was not consideredfor promotion during the currency of the punishment.4. Thereafter, the Tribunal for Disciplinary Proceedingsrepresented by the commissioner sent a letter to the VigilanceCommissioner, requesting him to intimate the Government to take stepsand to review the order passed by the Chief Executive of Forests, whois the second respondent herein.5. The record reveals that in pursuance to the same, the firstrespondent has requested the second respondent to send the originalrecord in and by its letter dated 06.12.2003. Thereafter the firstrespondent has initiated Suo Motu proceedings exercising its powersunder Rule 36 (1) of the Tamil Nadu Civil Services (Discipline andAppeal) Rules. The petitioner has challenged the said proceedingsdated 14.08.2005, initiated by the first respondent, which is a showcause notice calling upon the petitioner to explain as to why thepetitioner should not be awarded a punishment of withholding ofincrement for a period of 3 years. Challenging the same, thepetitioner has preferred this writ petition. Since the petitionerhas not given a reply, the first respondent has chosen to initiateproceedings and pass the final order imposing the punishment ofwithholding the future increments for 3 years with cummulativeeffect. The petitioner has also filed Miscellaneous application inM.P. No. 1 of 2009 seeking to amend the prayer by including theprayer for issuance of writ of certiorarified mandamus, calling forthe records pertaining to the final order passed by the firstrespondent dated 30.06.2009 under Rule 36 (1) of the Tamil Nadu Civil https://hcservices.ecourts.gov.in/hcservices/ Services (Discipline and Appeal). This Miscellaneous petition standsallowed.6. The learned counsel for the petitioner submitted that theexercise of power under Rule of 36(1) of the Tamil Nadu CivilServices (Discipline and Appeal) is impermissible in law, sinceafter six years, the Suo Motu power has been exercised by the firstrespondent. The learned counsel also submitted that the impungedorder is liable to be set aside, since the same would disclose thenon application of mind, as no reason has been assigned. The learnedcounsel submitted that in asmuchas the proceedings have beeninitiated at the instance of the Commissioner for the Tribunal forDisciplinary proceedings and the earlier proceeding has attained afinality, the first respondent cannot exercise his power in anarbitrary manner. Therefore the learned counsel sought for the writpetition being allowed. In support of his contention that theproceedings should be initiated within a reasonable time whileexercising Suo Motu power, the learned counsel relied upon theJudgement of the Supreme Court reported in (2007) 11 Supreme CourtCases 363 (State of Punjab v. Bhatinda District Coop. Milk ProducersUnion Ltd.) and (2009) 1 MLJ 1049 (N.Bose v. State of T.N.).7. The learned Government Advocate appearing for the secondrespondent submitted that the first respondent has come to anindependent decision to reopen the case, since it is felt that thepunishment awarded is very minor for a serious offence. He hasfurther submitted that the delay is due to the administrative reasonand asmuchas the power is available to the first respondent, theproceedings cannot be set aside on the ground of delay. Moreover,the mere fact that the letter has been sent by the Commissioner ofTribunal for Disciplinary Proceedings to take action for imposinghigher punishment cannot be put against the first respondent, who hadacted independently. Therefore the learned Government Advocatesubmitted that the writ petition is liable to be dismissed. 8. As rightly contended by the learned counsel for thepetitioner, the commissioner of Tribunal for Disciplinary Proceedingshas no role in the nature of Punishment or on the decision makingprocess. It is for the respondents 1 and 2, being the disciplinaryas well as the appointing authorities, to take appropriate decisionin accordance with law. The Commissioner of Tribunal forDisciplinary Proceedings is only an authority for conducting theproceedings. He has got no other role to play. A Persual of therecord would show that the proceedings has been initiated only at theinstance of the Commissioner of Tribunal for DisciplinaryProceedings. In fact based upon the letter dated 03.01.2003 sent bythe Commissioner, a notice has been sent thereafter by the firstrespondent on 06.02.2003 to the second respondent requiring him tosend the original records. The reading of the letter dated03.01.2003 would show that a request has been made by the https://hcservices.ecourts.gov.in/hcservices/ Commissioner to review the order of Censure. If an order of reviewhas been done by the second respondent himself in this case, there isno necessity for the first respondent to exercise its power of SuoMotu Revision. The said letter dated 03.01.2003 also indicates thatthe second respondent has not awarded the adequate punishment.Therefore this court is of the opinion that the very initiation ofthe proceedings by the first respondent itself is not proper on thefacts and circumstances of the present case. 9. In so far as other contention of the learned counsel for thepetitioner is concerned, a reading of the order passed by the firstrespondent would show that no reason has been assigned by the firstrespondent for passing the said order. An order passed by thecompetent authority should contain the reasons for passing the same.The first respondent has exercised its power as a disciplinaryauthority. A right to reasoning is a basic right, being thefoundation of the judicial system. The delinquent officer isentitled to know the reasons based upon which the order has beenpassed. 10. In the Judgment report in (2008) 2 MLJ 1018 (SC)(Divisional Forest Officer, Kothagudem and others Vs. MadhusudhanRao), the Honourable Supreme Court has held as follows:"13. In support of his aforesaid submission,Mr.Gururaja Rao referred to a Constitution Bench decisionof this Court in State of Madras v. A.R.Srinivasan AIR 1966SC 1827, which was a case involving compulsory retirementof a civil servant in which the aforesaid question hadarisen. Repelling the argument of Mr.Setalvad that evenwhile affirming an order, an authority acting in a quasi-judicial character should indicate some reasons as to whyit accepted the findings of the lower forum, this Courtheld that having regard to the material which is madeavailable to the State Government, it would be somewhatunreasonable to suggest that the State Government mustrecord its reasons why it accepted the findings of theTribunal. This Court went on to observe further that evenwhile differing with the order of the lower forum, theState Government was merely required to give reasons why itdiffers though it was not necessary that such reasonsshould be detailed or elaborate. The conclusion arrived atby the Constitution Bench was that where the StateGovernment agrees with the findings of the Tribunal whichare against the delinquent officer, it could not be said asa matter of law that the State Government could not imposepenalty against the delinquent officer in accordance withthe findings of the Tribunal, unless it gave reasons toshow why the said findings were accepted by it. https://hcservices.ecourts.gov.in/hcservices/

14. In this regard reference was also made to twoother decisions of this Court; (i) Som Datt Datta v. Unionof India and Others AIR 1969 SC 414:(1969) 2 SCR 177, and(ii) Tara Chand Khatri v. Municipal Corporation of Delhiand Others AIR 1977 SC 567: (1977) 1 SCC 472 : 1977-I-LLJ-331 where the aforesaid sentiments were reiterated. Mr.Gururaja Rao urged that since this was a serious matterinvolving embezzlement of Government funds, the lacuna inthe orders passed by the appellate and revisionalauthorities should not be taken as fatal, since theDivisional Forest Officer had dealt with the charges andthe response of the respondents thereto in great detail.15. Mr. D. Ramakrishna Reddy, learned counselappearing on behalf of the respondent, however, submittedthat both the Administrative Tribunal as also the HighCourt had correctly come to the conclusion that neither theappellate authority nor the revisional authority hadapplied their minds to the appeal and the revisionpreferred by the respondent and the orders passed by thesaid authorities had been correctly set aside by theAdministrative Tribunal on such basis. Learned counselfurther urged that certain mandatory provisions of theAndhra Pradesh Civil Services (Classification, Control andAppeal) Rules, had not been followed and as rightly pointedout both by the Tribunal as also the High Court, althoughthe Conservator of Forests as the appellate authority wasempowered to enhance the punishment awarded by theDivisional Forest Officer, he was required to deal with theresponse to the show cause notice with more application,instead of simply enhancing the punishment without givingany reasons therefore. He also urged that non-supply ofthe Enquiry Officer's Report was another fatal defect underRule 20 of the aforesaid Rules. He urged that the order ofthe High Court did not warrant any interference and theappeal was liable to be dismissed.16. In support of his submissions, Mr.RamakrishnaReddy referred to the decision of this Court in R.P. Bhattv. Union of India and Others, (1986) 2 SCC 651, wherein itwas observed that while considering an appeal against anorder enhancing any penalty under the Central CivilServices (Classification, Control and Appeal) Rules,requirements of Rule 27(2) must be complied with andconsideration would mean a finding of satisfaction as towhether the procedure laid down in the Rules had beencomplied with and if not complied with, whether such non-compliance had resulted in violation of any of theprovisions of the Constitution or in failure of justice.Mr.Ramakrishna Reddy submitted that the three cases cited https://hcservices.ecourts.gov.in/hcservices/ by Mr.Gururaja Rao had already been referred to andultimately the appeal was allowed with the direction on theconcerned authority to dispose of the appeal before himafresh after applying his mind to the requirements of Rule27(2) of the Central Civil Services Rules, 1965.17. The next case referred to by Mr.Reddy is RamChander v. Union of India and Others AIR 1986 SC 1173 :(1986) 3 SCC 103 : 1986-II-LLJ-334 where the decision inR.P. Bhatt v. Union of India and Others, (supra) wasfollowed.18. Having considered the submissions made on behalfof the respective parties and also having regard to thedetailed manner in which the Andhra Pradesh AdministrativeTribunal had dealt with the matter, including theexplanation given regarding the disbursement of the moneyreceived by the respondent, we see no reason to differ withthe view taken by the Administrative Tribunal and endorsedby the High Court. No doubt, the Divisional Forest Officerdealt with the matter in detail, but it was also the dutyof the appellate authority to give at least some reasonsfor rejecting the appeal preferred by the respondent. Asimilar duty was cast on the revisional authority beingthe highest authority in the Department of Forests in theState. Unfortunately, even the revisional authority hasmerely indicated that the decision of the Divisional ForestOfficer had been examined by the Conservator of Forests,Khammam wherein the charge of misappropriation was clearlyproved. He too did not consider the defence case as madeout by the respondent herein and simply endorsed thepunishment of dismissal though reducing it to removal fromservice.19. It is no doubt also true that an appellate orrevisional authority is not required to give detailedreasons for agreeing and confirming an order passed by thelower forum but, in our view, in the interests of justice,the delinquent officer is entitled to know at least themind of the appellate or revisional authority in dismissinghis appeal and/or revision. It is true that no detailedreasons are required to be given, but some brief reasonsshould be indicated even in an order affirming the views ofthe lower forum."11. Similarly, the recent Judgment, the Honourable Apex Courtreported in (2009) 4 Supreme Court Cases 240 (Chairman, DisciplinaryAuthority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish SharanVarshney and Others) has held as follows. https://hcservices.ecourts.gov.in/hcservices/ "5. In our opinion, an order of affirmation need notcontain as elaborate reasons as an order of reversal, butthat does not mean that the order of affirmation need notcontain any reasons whatsoever. In fact, the said decisionin Prabhu Dayal Grover case has itself stated that theappellate order should disclose application of mind.Whether there was an application of mind or not can only bedisclosed by some reasons, at least in brief mentioned inthe order of the appellate authority. Hence, we cannotaccept the proposition that an order of affirmation neednot contain any reasons at all. That order must containsome reasons, at least in brief, so that one can knowwhether the appellate authority has applied its mind whileaffirming the order of the disciplinary authority.6. The view we are taking was also taken by thisCourt in Divisional Forest Officer v. Madhusudhan Rao (videSCC para 20 : JT para 19), and in M.P. Industries Ltd. v.Union of India, Siemens Engg. & Mfg. Co. of India Ltd. v.Union of India (vide SCC para 6 : AIR para 6), etc.7. In the present case, since the appellateauthority's order does not contain any reasons, it does notshow any application of mind.8. The purpose of disclosure of reasons, as held by aConstitution Bench of this Court in S.N.Mukherjee v. Unionof India, is that people must have confidence in thejudicial or quasi-judicial authorities. Unless reasons aredisclosed, how can a person know whether the authority hasapplied its mind or not? Also, giving of reasons minimisesthe chances of arbitrariness. Hence, it is an essentialrequirement of the rule of law that some reasons, at leastin brief, must be disclosed in a judicial or quasi-judicialorder, even if it is an order of affirmation.9. No doubt, in S.N. Mukherjee case it has beenobserved that: (SCC p. 613, para 36)"36. ..... 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."The above observation, in our opinion, really meansthat the order of affirmance need not contain an elaboratereasoning as contained in the order of the originalauthority, but it cannot be understood to mean that evenbrief reasons need not be given in an order of affimance.To take a contrary view would mean that appellateauthorities can simply dismiss appeals by one-line orders https://hcservices.ecourts.gov.in/hcservices/ stating that they agree with the view of the lowerauthority.10. For the same reason, the decision of this Courtin State of Madras v. A.R. Srinivasan (vide AIR para 15)has also to be understood as explained by us above.11. Hence, we agree with the High Court that reasonsshould have been contained in the appellate authority'sorder, but we cannot understand why the High Court has setaside the order of the disciplinary authority, in additionto setting aside the appellate order." 12. The first respondent has not even considered the evidenceavailable on record. While revising the order passed by thecompetent authority, the first respondent will have to act as anappellate authority and give a finding while exercising power of SuoMotu Revision under Rule 36 (1) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. Hence this court of the opinion thatthe order passed by the first respondent is liable to be set asidefor want of proper reasons for passing the same.13. It is also seen that the second respondent has passed finalorders. It is also seen that the second respondent while imposingthe order of Censure has given a reason that there are contradictionin the evidence of witnesses and in any case, the evidence of P.W.1cannot be taken into consideration in its entirety. The firstrespondent has also not given any finding that the said reasoning hasbeen arrived at wrongly or otherwise.14. In so far as the contention of the learned counsel for thepetitioner that the proceedings are liable to be set aside on thequestion of delay, the said contention has to accepted by this Court.No doubt, the first respondent is conferred with suo motu powers.Mere availability of such a power cannot be construed that the samecan be exercised at any stage. In the present case, the Commissionerfor the Tribunal for disciplinary proceedings sent a letter dated03.01.2003 and in pursuant to the same, the first respondent askedfor the records from the second respondent on 06.02.2003. There isno proper explanation for the long delay in not initiating theproceedings till 14.05.2008. A reading of the Rule 36(1) of theTamil Nadu Civil Services (Disciplinary Appeal) Rules clearly showthat when a power is conferred upon an authority, other than theState Government, six months is fixed. The said rule also specifiesthat the application for revision shall be dealt with in the samemanner as if it were an appeal under this rule. Moreover if therevisional authority to whom the revision has been preferred is theappellate authority himself, then the revision petition should besubmitted well within six months of the date of order which is sought https://hcservices.ecourts.gov.in/hcservices/ to be revised. A reading of the above said Rule would show that eventhough the period of limitation is not specifically provided, thefirst respondent has to exercise his power within a reasonable time.In a case like the present case, it is not in dispute that the firstrespondent is an appellate authority. Supposing the revision isfiled before the first respondent by any other person then as per theRule within 6 months, the 1st respondent has to act. No doubt in thepresent case the 1st respondent has exercised the power under Rule 36(1) of the Tamil Nadu Civil Services (Discipline and Appeal) on hisown motion. However, the said power has to be considered in thelight of the other provisions. 15. Taking into consideration the said facts, this court of theopinion is that the delay in initiating proceedings by the firstrespondent cannot be condoned and on that score also the impugnedproceeding is liable to be set aside. In the Judgement report in(2007) 11 Supreme Court Cases 363 cited supra, the Supreme Court hasheld that even in the case where no period of limitation has beenprescribed, the same would not mean that, he may exercise the powerat any time. The Honourable Supreme Court was pleased to hold thatif no period of limitation has been prescribed the statutoryauthority has to exercise the jurisdiction within a reasonable time.Similarly in the decision report in (2009) 1 MLJ 1149 cited supra,this Honourable Court while considering the very same rule has takenthe view that the delay of seven years for exercising the suo motupower is not proper. 16. Having perused the above Judgments, this court is of theconsidered view that the said Judgments are applicable to the presentcase. Accordingly the impugned proceeding is liable to be set asideon the ground of delay as well.17. Taking into consideration all the above said facts, thiscourt is of the opinion that the writ petition is liable to beallowed. Accordingly, the same is allowed. The respondent isdirected to consider the petitioner's case of promotion in accordancewith law and on merits. Consequently, other connected MiscellaneousPetitions in M.P.No.1 of 2008 and 1 to 3 of 2009 are closed.ogySd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. 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.+1 cc to Mr. M. Ravi, Advocate, SR.No.41215.+1 cc to the Government Pleader, (Forest), SR.No.41427.W.P.No.14791 OF 2008GGK(CO)AR/7.10.2009.