Judgment · High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.09.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.35110 OF 2006(O.A.NO.4822 OF 1998)K.Karunanidhi (deceased)K.Kantha(substituted as legal heir ofapplicant/deceased vide orderdt.15.09.2009 in M.P.No.1/2009) ..PetitionerVs.

The Government of Tamil Nadu, rep. By its Secretary Ministry of Commercial Taxes, Fort St. George, Chennai-600 009.

The Special Commissioner and Commissioner of Commercial Taxes, Chepauk, Chennai-600 005.

The Deputy Commissioner, (Commercial Taxes) Chennai (Central) Division, Commercial Tax Building, Greams Road, Chennai-600 006.

The Assistant Commissioner, Commercial Taxes Zone IV, Greams Road, Chennai-600 006. ..Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records of the thirdrespondent culminating in the proceedings in Na.Ka.A3-4164/96 dated26.12.1997, quash the same and to set aside the order of dismissaland to direct the reinstatement of the applicant in the post of https://hcservices.ecourts.gov.in/hcservices/ Assistant in the office of the respondents with all backwages witheffect from 30.1.1992.For Petitioner : Mr.C.A.DiwakarFor Respondents : Mr.R.Neelakantan, GA ORDERHeard both sides. 2. This writ petition arose out of O.A.No.4822 of 1998 filed bythe original petitioner before the Tamil Nadu AdministrativeTribunal. In view of the abolition of the Tribunal, it wastransferred to this court and was renumbered as W.P.No.35110 of 2006. 3. The original petitioner sought for the issuance of a writ ofcertiorarified mandamus to call for the records of the thirdrespondent culminating in the proceedings in Na.Ka.A3-4164/96 dated26.12.1997, quash the same and to set aside the order of dismissaland to direct the reinstatement of the applicant in the post of Assistant in the office of the respondents with all backwages witheffect from 30.1.1992.4.The original petitioner, who was the husband, was dismissedfrom service by the fourth respondent, by an order, dated 29.2.96.The original petitioner filed an appeal, dated 21.3.96 before thethird respondent and that was dismissed by an order, dated 26.12.97.It is against these two orders, he filed the original application. The ground for dismissal against the original petitioner was that hewas initially in unauthorised absence from work from 4.3.89. When anenquiry was pending against the said charge memo, it was brought tothe notice of the authorities that the original petitioner hadparticipated in a political agitation conducted by the DMK politicalparty and was kept in Cuddalore Central jail from 21.11.1986 to22.1.1987. In that criminal case, the original petitioner was alsoconvicted by the Sub Divisional Judicial Magistrate, Villupuram in CCcase No.1529 of 86, dated 22.8.87 and the original petitioner neverinformed about the said conviction.

It was also stated that this conduct was violative of Rule14 and 23 of Tamil Nadu Servant Conduct Rules. Though the originalpetitioner claimed that he had filed an appeal, it later transpiredthat the appeal filed by R.Palani and six others was dismissed by the District Sessions Judge in CA No.67/87. The applicant claimed that hewas not punished by the Magistrate and he was unnecessarilyimplicated in the said case. But the records obtained by therespondents show that the original petitioner was part of burning of Constitution copy agitation against the imposition of Hindi asofficial language and the same was proved before the Trial court. Hewas awarded the punishment of imprisonment for two weeks under https://hcservices.ecourts.gov.in/hcservices/ Section 143 IPC and another two weeks under Section 2 of the Prevention of Insults to National Honour Act, 1971. Therefore, therewas no impediment for the respondents to impose a punishment under Rule 17(c)(1)(1) of the Tamil Nadu Civil Service (Disciplinary andappeal) Rules r/w Article 311(2)(a) of the Constitution. The originalpetitioner initially claimed that he had nothing to do with thepolitical party and he was wrongly implicated in the criminal casebecause of the name that he has and hence he should be exonerated.

In response to these allegations, in the reply affidavit, dated 28.7.2000, in para 23, it was averred as follows: "23.... it is submitted that it isascertained that the Applicant in his petition dated19.7.89 to the Honourable Chief Minister's SpecialCell, had stated among other things that he was amember of a political party since 1977 and he was aSecretary of that party in that locality that he hadtaken part in the picketing in support of CeylonTamils and Burning of 'Constitution Amendment Bill'in 1987 and 1988 organized by that political partyand that the Applicant was imprisoned. "

The counsel for the original petitioner raised twocontentions. The first contention was that the conviction was in theyear 1987 and for that charge memo was given in 1991 i.e. after aperiod of four years and therefore, in view of the long delay inframing the charges, the charges must be quashed. He relied upon thefollowing three decision:a)P.V.Mahadevan Vs. M.D., Tamil Nadu HousingBoard (2005 (4) CTC 403),(b)R.Thirupathy and others Vs. The DistrictCollector, Madurai District, Collectorate, Madurai-2and others (2006 (2) CTC 574), and(c)D.Amaladoss Vs. The State of Tamil Nadurep. By Secretary to Government, Home Department(Courts I.A.), Fort St. George, Chennai and another(2006 (5) CTC 141).

It must be noted that the original petitioner for hisabsence during the days while he was in Central Prison, Cuddaloreapplied for leave on unearned leave of private affairs for 55 daysand EOL for 83 days from the 4th respondent without disclosing thereal reason for his absence. These facts were brought to notice ofthe respondents only when the respondents have received copy of thejudgment from the criminal court convicting him for the two offences. Further, when there is a conviction of a Government servant, the https://hcservices.ecourts.gov.in/hcservices/ respondents are at liberty to take action even without enquiry interms of Article 311(2)(a) of the Constitution.

The second contention raised by the original petitionerwas that even if he is convicted, the dismissal imposed on him wasdisproportionate and therefore, this Court having power under Article226 to interfere with the said punishment. In this context, reliancewas placed upon the judgment of the Supreme Court in Union of Indiav. Parma Nanda reported in (1989) 2 SCC 177. A reliance was placed onthe following passage found in paragraph 29 of the said judgment, which is as follows:29. We may however, carve out one exception to thisproposition. There may be cases where the penaltyis imposed under clause (a) of the second provisoto Article 311(2) of the Constitution. Where theperson, without enquiry is dismissed, removed orreduced in rank solely on the basis of convictionby a criminal court, the Tribunal may examine theadequacy of the penalty imposed in the light of theconviction and sentence inflicted on the person.

Before going into the so-called disproportionality of thepunishment, the relevant legal positions must be considered. TheGovernment servants are governed by the Tamil Nadu Government ServantConduct Rules. In this context, it is necessary to refer to Rules 20(1) and 23 of the T.N. Govt. Conduct Discipline & Appeal Rules, whichare as follows: Rule 20. Integrity and devotion to duty-(1)Every member of the service shall at alltimes maintain absolute integrity and devotion toduty and shall do nothing which is unbecoming of amember of the service. ....Rule 23. Anti-secular of social disharmonyactivity and Demonstration- No Government servantshall engage himself or participate in any activitywhich is anti-secular or which tends to createdisharmony in society or in any demonstration whichis prejudicial to the interests of the sovereigntyand integrity of India, the security of the State, friendly relations with Foreign States, PublicOrder, decency or morality or which involves https://hcservices.ecourts.gov.in/hcservices/ contempt of court, defamation or incitement to anoffence.

Apart from the conduct rules, a Government servant justlike any other citizen of the country is bound by Article 51Aimposing fundamental duties upon every citizen. It is necessary torefer to Article 51-A (a) and (j) of the Constitution of India, whichwill have a bearing in the present case and the same reads as follows:51A.Fundamental duties.- It shall be theduty of every citizen of India -(a)to abide by the Constitution and respectits ideals and institutions, the National Flag andthe National Anthem;.....(j)to strive towards excellence in allspheres of individual and collective activity sothat the nation constantly rises to higher levels ofendeavour and achievement.

Therefore, the original petitioner being a Governmentservant ought not to have participated in the agitation conducted bya political party and get himself arrested and convicted for burninga copy of the Constitution and also not informing the employer abouthis conviction. It is needless to state that violation of theprovisions of the Prevention of Insults to National Honour Act, 1971is a serious offence and burning a copy of the Constitution will behit by Section 2 of the said Act. In this context, it is necessary torefer to a Division Bench judgment of this Court presided byM.N.Chandurker, C.J. Vide judgment in in K.Anbazhagan Vs. TheSecretary, The Tamil Nadu Legislative Assembly and others reported in1987 Vol.4 WLR 568. The said judgment came to be rendered in thecontext of the challenge made to the decision of the Tamil NaduLegislative Assembly in disqualifying 10 members of the House forcommitting the very same offence i.e. in respect of burning a copy of Part XVII of the Constitution pursuant to the decision taken by the Executive Committee Resolution dated 9.11.1986 passed by the DMKParty.

As to how far such a agitation is protected by the right tofreedom of speech and expression guaranteed under Article 19(1)(a) ofthe Constitution which was also considered in the very same judgment. In the very same judgment paragraph 69 which is as follows:69....Art.19(1)(a) merely guarantees to acitizen the freedom of speech and expression. However wide a meaning may be given to theexpression 'freedom of speech and expression' itcannot certainly take in a conduct which isnecessarily made penal by a statute. The conduct inthe instant case consisted of burning the Constitution which is expressly punishable. It isnobody's case that the provision of the Preventionof Insults to National Honour Act which makesdefiling the Constitution or burning the Constitution an offence, is invalid. It is thisconduct which became the subject matter of theproceedings before the Assembly and so far as thefacts of the present case are concerned, there is noquestion of any violation of Art.19(1)(a) of the Constitution of India arising.

The inter-link between the prevention of insults to National Honour Act, 1971 and Article 51A was also considered in thevery same judgment and the following passage found in paragraph 86will make clear the said legal position and it is necessary toreproduced the said paragraph which is as follows: https://hcservices.ecourts.gov.in/hcservices/

86....The act which is not only made penalby the provisions of the prevention of Insults to National Honour Act, 1971, but is expressly inderogation of one of the fundamental duties of acitizen incorporated in Art.51 A of the Constitution. Art 51-A Inter Alia provides that itshall be the duty of every citizen to abide by the Constitution and respect its ideals and institutionsthe National Flag and the National Anthem. It isanother matter that the duty to abide by and respectthe Constitution is made a fundamental duty, buteven without such prescription made expressly byamendment of the Constitution, it is implicit in theadoption of a written Constitution, which is givenby the people of India to themselves, that as longas the Constitution, which represents the will ofthe people and is the Supreme law of the land is inforce, it is an imperative obligation of everycitizen of the Indian Republic, including those whowant to voice their dissent in respect of anyparticular provision, to abide by the provisions ofthe Constitution and notwithstanding their dissentin respect of some provisions, they are bound torespect it apart from the express provision made in Art.51-A. ..."

Even with reference to prolonged absence of a Governmentservant, the Courts were forewarned from showing any indulgence whensuch cases are brought to court and need to apply the fundamentalduty enshrined in Article 51A(j) of the Constitution by the SupremeCourt vide its decision in Govt. of India v. George Philip reportedin (2006) 13 SCC 1. It is necessary to refer to the followingpassage found in paragraph 18 of the said judgment, which is asfollows:18....Article 51-A(j) of the Constitution laysdown that it shall be the duty of every citizen tostrive towards excellence in all spheres ofindividual and collective activity so that the nationconstantly rises to higher levels of endeavour andachievement. This cannot be achieved unless theemployees maintain discipline and devotion to duty. Courts should not pass such orders which instead ofachieving the underlying spirit and objects of PartIV-A of the Constitution have the tendency to negateor destroy the same.

In the light of the above clear legal pronouncements, theoriginal original petitioner cannot be shown any indulgence even inthe matter of punishment. The original original petitioner had not https://hcservices.ecourts.gov.in/hcservices/ only contravened the conduct rules making himself liable fordisciplinary action, but also having got imprisonment by voluntarilyparticipating in a political agitation, he has violated the Laws ofthe land and disobeyed the fundamental duties enshrined in the Constitution.

In the light of the above, the writ petition will standdismissed. No costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarvvkTo1. The Secretary The Government of Tamil Nadu, Ministry of Commercial Taxes, Fort St. George, Chennai-600 009.2. The Special Commissioner and Commissioner of Commercial Taxes, Chepauk, Chennai-600 005.3. The Deputy Commissioner, (Commercial Taxes) Chennai (Central) Division, Commercial Tax Building, Greams Road, Chennai-600 006.4. The Assistant Commissioner, Commercial Taxes Zone IV, Greams Road, Chennai-600 006.+ 1 c.c. to Mr. C.A. Diwakar, Advocate. S.R.No.49407. W.P.NO.35110 OF 2006JP (CO)GSK 14.10.2009.