CORAMTHE HONOURABLE MR v. The Secretary to Governmentof Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 28-04-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.33644 of 2004M.Karuppiah.. Petitioner.Versus1.The Secretary to Governmentof Tamilnadu, Rural Development (E2) Department,Fort St. George, Chennai-600 009.2.The District Revenue Officer,Tiruchirapalli District,Tiruchirapalli.3.The Tahsildar,Manaparai Taluk, Manaparai,Tiruchirapalli District... Respondents.Prayer: This petition has been filed seeking for a writ ofCertiorarified Mandamus, calling for the records relating to G.O.(2D) No.58, Rurl Development (E.2) Department, dated 25.4.2003,issued by the Secretary to Government, Rural Development (E.2)Department, Chennai-9, the first respondent herein, and quash thesame and consequently direct the respondents herein to reinstatethe petitioner in service with all consequential service andconcomitant benefits with due seniority to the petitioner and payall the arrears to the petitioner within a short date that may befixed by this Hon'ble Court. For Petitioner : Mr.K.RajkumarFor Respondents : Mr.V.Viswanathan (AGP)O R D E RThis writ petition has been filed praying for a writ ofcertiorarified mandamus, challenging G.O.(2D).No.58, RuralDevelopment (E.2) Department, dated 25.4.2003 and for aconsequential direction to reinstate the petitioner in service,with backwages and continuity of service. https://hcservices.ecourts.gov.in/hcservices/

2. It has been stated that the petitioner was appointed asa Village Administrative Officer, on 12.3.1984 and posted atJegadhapi Village in Karur District. Thereafter, the petitioner hadbeen posted at Several other places. On 26.11.1988, he was postedat Sembia Natham Village in Kulithalai Taluk. He was a VillageAdministrative Officer at Sembium, from 26.11.1988 to 13.2.1992.While so, he had issued several certificates, including communitycertificates, nationality certificates, income certificates etc.,to various persons. The said certificates had been issued based onthe reports given by the Revenue Inspector, who is the field levelofficer to verify the facts and to report the same to the VillageAdministrative Officer concerned.3. It has been further stated that while he was a VillageAdministrative Officer at Sembiam, thirty Adi Dravidars hadapproached him for the issuance of the community, income andnationality certificates for obtaining loans under the IntegratedRural Development Scheme from TAHDCO. On receipt of theirapplications, the petitioner had directed the Revenue Inspector tosubmit the report, with regard to the genuineness of their claims.The Revenue Inspector, Cuddalore, had made an inspection and hadreported that they were eligible for the certificates requested bythem. On receipt of the reports from the Revenue Inspector, thepetitioner had made his recommendations to the Tahsildar forissuing of the certificates. Thereafter, it is for the Tahsildar toconsider the recommendations made by the petitioner and theinspection report of the Revenue Inspector and to issue thenecessary certificates to the claimants. There is no independentpower vested with the petitioner to issue the certificates. Oncethe certificates are issued the petitioner has no role in findingout the purpose for which the certificates had been used. 4. It has been further stated that one Vellaikannu, ofKuruniyur Village, is said to have withdrawn the loan amounts inthe name of the 30 Adi Dravidars by using the certificates issuedto them. The amounts withdrawn by Vellaikannu, had beenmisappropriated by him. The petitioner, after coming to know of thefact of misappropriation, had informed about the same to the higherofficials. After five years from the date of issuing of thecertificates, the Government by its letter, dated 23.4.1997, hadissued a charge memo to the petitioner, under Rule 17(b) of theTamil Nadu Civil Services (Discipline and Appeal) Rules. 5. The charges levelled against the petitioner are thatwhile working as a Village Administrative Officer at Sembia NathamVillage, from 26.11.1988 to 13.2.1992, he had obtained IntegratedRural Development Programme loan applications from 30 Adi Dravidarsand got the loans sanctioned with the help of the manager TAHDCOand some others, without the knowledge of the applicants. Thus, hehad misused his official position. It was also alleged that duringthe said period, the petitioner was responsible for the https://hcservices.ecourts.gov.in/hcservices/ misappropriation of the subsidy amount of Rs.90,000/-, under theIntegrated Rural Development Programme. Thus, he had failed tomaintain absolute integrity. 6. It has been further stated that on receipt of the chargememo the petitioner had submitted his explanation stating that hewas not connected with the misappropriation of the loan amounts. Infact, after he came to know about the fraud committed he hadbrought it to the knowledge of the higher authorities. However, anenquiry had been ordered to enquire into the charges levelledagainst the petitioner, on 18.11.97, by G.O.(D).No.578, RuralDevelopment Department. The petitioner had been called upon toattend the enquiry, on 29.12.1998. 7. During the enquiry, the enquiry officer had asked thepetitioner to reply to the charges levelled against him. Aftereliciting the statements of defence of the petitioner, the enquiryofficer had examined the other witnesses. While examining thewitnesses he had simply marked the earlier statements given by themto the Vigilance Inspector. The said statements had been taken asstatements made in the chief examination. However, copies of thestatements had not been supplied to the petitioner. In the absenceof such statements, the petitioner was not in a position to crossexamine the witnesses. 8. After the enquiry, the enquiry officer had made anenquiry report stating that on the basis of the statements given bythe witnesses to the Inspector of Vigilance, the charges levelledagainst the petitioner had been proved. While coming to hisconclusions the enquiry officer had failed to marshal the evidenceavailable on record in view of the cross examination of thewitnesses who have categorically stated that they had no knowledgeabout the petitioner's involvement and they had also stated thatthe petitioner had not instigated them, in any way. 9. Thus, even though there was sufficient evidenceavailable on record in favour of the petitioner, the enquiryofficer had given a contrary finding that the charges against thepetitioner had been proved. Even though it was found thatVellaikannu was instrumental in the misappropriation of the funds,including the subsidy amount, the enquiry officer had erroneouslycome to the conclusion that the charges levelled against thepetitioner had been proved. Such a finding by the enquiry officeris without evidence and therefore, it is perverse in nature.10. It has been further stated that the enquiry officer,after recording a finding, on 12.3.1999, had forwarded his reportto the Government. Thereafter, a copy of the enquiry report hadbeen supplied to the petitioner. The petitioner, by hisrepresentation, dated 2.2.2000, had submitted his reply to thefindings of the enquiry officer. Thereafter, the Government had https://hcservices.ecourts.gov.in/hcservices/ sought for the opinion of the Tamil Nadu Public Service Commissionon the findings of the enquiry officer and also with regard to thequestion of imposing penalty on the petitioner. Though an opinionhad been sought for from the Tamil Nadu Public Service Commission,the details of the opinion, as well as the advice given by theCommission, were not supplied to the petitioner before final ordershad been passed. 11. Though the Government had come to the provisionalconclusion of imposing the punishment of stoppage of increments,with cumulative effect for three years and also the recovery of asum of Rs.4,500/- from the pay of the petitioner in 10 equalmonthly instalments, it had imposed the punishment of removal fromservice on the petitioner based on the opinion of the Tamil NaduPublic Service Commission. Thereafter, the Government on receipt ofthe opinion from the Tamil Nadu Public Service Commission hadissued final orders in G.O.(2D) No.58, Rural Development (E2)Department, dated 25.4.2003, had imposed the punishment of removalfrom service on the petitioner. Proper reasons have not been givenin the order passed by the Government to impose the punishment ofremoval from service on the petitioner. In such circumstances, thepetitioner has preferred the present writ petition before thisCourt, under Article 226 of the Constitution of India. 12. The learned counsel appearing on behalf of thepetitioner had submitted that, as per the Tamil Nadu Civil Services(Discipline and Appeal) Rules, the Tahsildar is the competentauthority to pass the order of removal from service against thepetitioner. However, the impugned order had been issued by theSecretary, Rural Development Department, which is an alienDepartment. Since the impugned order passed by the first respondentis without jurisdiction it is void in the eye of law. In support ofthe above contentions, the learned counsel for the petitioner hadrelied on the decisions of the Supreme Court in Kiran Singh V.Chaman Paswan (AIR 1954 SC 340) and Central Bank of India Vs.C.Bernard (1991(1) SCC 319). 13. It has been further contended that the petitioner hadbeen deprived of his right of appeal, since the impugned order hasbeen passed by the Government of Tamil Nadu, instead of the orderbeing passed by the Tahsildar, who is the appropriate authority topass such an order. In support of the above contentions, thelearned counsel for the petitioner had relied on the decision ofthe Supreme Court in Surjit Ghosh V. Chairman & M.D., UnitedCommercial Bank (AIR 1995 SC 1053). The power to appoint cannot bedelegated and also the power to take disciplinary action cannot bedelegated. The appointing authority for the petitioner is theRevenue Divisional Officer. In support of the above contentions,the learned counsel for the petitioner had relied on the decisionof the Supreme Court in Hindustan Lever Ltd., V. Ashok Vishnu Kateand others (AIR 1996 SC 285). https://hcservices.ecourts.gov.in/hcservices/

14. Further, the initiation of the disciplinary proceedingsagainst the petitioner has not been made, in accordance with Rule17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)Rules, read with Personnel and Administrative Reforms instructionsof the Government and the law laid down by the Supreme Court ofIndia and the High Courts. It has been held that the charge memoshould enclose the list of witnesses, the list of documents andcopies of the documents relied on by the prosecution. Since suchdocuments had not been supplied to the petitioner, the enquiryconducted against him is vitiated. The procedure followed by theenquiry officer is contrary to law and the principles of naturaljustice. The enquiry officer had come to his conclusions by simplyrelying on the statements of the witnesses recorded during thepreliminary enquiry and without giving an opportunity to thepetitioner to defend himself by producing the necessary recordsrelied on by the enquiry officer. No opportunity had been given tothe petitioner to cross examine the witnesses. Therefore, theimpugned order removing the petitioner from service is illegal andvoid. In support of the above contentions, the learned counsel forthe petitioner had relied on the decisions of the Supreme Court inMohd.Quaramuddin V. State of A.P (1994(5) SCC 118) and State Bankof India V. D.C.Aggarwal (AIR 1993 SC 1197).15. The disciplinary proceedings initiated against thepetitioner and the consequential punishment imposed on him areliable to be set aside on the ground of delay. The alleged incidentis said to have taken place in the year, 1990. However, the chargememo had been issued in the year, 1997. There is no properexplanation given by the respondents for the undue delay in theinitiation of the proceedings. In support of the above contentions,the learned counsel for the petitioner had relied on the decisionof the Supreme Court in P.V.Mahadevan V. MD, T.N.Housing Board(2006(6) SCC 636)16. It has also been contended that the impugned order,based on vague charges, cannot be sustained. The allegation thatthe petitioner had connived with the manager of TAHDCO, for gettingthe loan, in not specific in nature. No details had been given withregard to the role of the petitioner. In support of the abovecontentions, the learned counsel for the petitioner had relied onthe decisions of the Supreme Court in (Transport Commr. V.V.A.Radha K.Moorthy (1995(1) SCC 332); Dy.Inspector General ofPolice V. V.K.S.Swaminathan (1996(11) SCC 498) and G.Anand V.Principal Commissioner (2007(8) MLJ 10).17. The Enquiry officer had not discussed the evidenceavailable on record. In spite of the Government proposing to imposethe punishment of stoppage of increment, with cumulative effect,for a period of three years and the recovery of Rs.4,500/-, in 10equal instalments, the Tamil Nadu Public Service Commission haddeviated from the established procedure by recommending the https://hcservices.ecourts.gov.in/hcservices/ imposing of the punishment of removal from service on thepetitioner. However, the opinion of the Tamil Nadu Public ServiceCommission had not been supplied to the petitioner. Thus, it is inviolation of the principles of natural justice.In support of theabove contentions, the learned counsel for the petitioner hadrelied on the decision of the Supreme Court in State of Gujarat V.R.G.Teredesai (AIR 1969 SC 1294).18. Further, there is no evidence that the petitioner hadmoved the manager TAHDCO for the sanction of the loans in favour of30 applicants. The petitioner had only recommended for the issuingof the certificates, based on the report of the Revenue Inspector.The petitioner is not the authority to issue the certificates. Itis only the Tahsildar who is the issuing authority. However, noaction has been initiated against the Tahsildar for issuing thecertificates, alleged to be bogus in nature. The impugned penaltyis highly disproportionate in nature compared to the allegeddiscrepancy said to have been committed by the petitioner. Insupport of the above contentions, the learned counsel for thepetitioner had relied on the decisions of the Supreme Court inBhagat Ram Vs. State of H.P. (1983(2) SCC 442) and Ranjit Thakur V.Union of India (1987 (4) SCC 611).19. Since there is no independent application of mind bythe Government, as it had entirely relied on the opinion of theTamil Nadu Public Service Commission, the impugned order removingthe petitioner from service is arbitrary and illegal. In support ofthe above contentions, the learned counsel for the petitioner hadrelied on the decision of the Supreme Court in Mansukhlal VithaldasChauhan V. State of Gujarat (AIR 1997 SC 3400). 20. The enquiry officer had relied on certain statementsrecorded during the preliminary enquiry and submitted to theVigilance Inspector. The persons who had made the statements hadnot been examined during the enquiry and therefore, the petitionerdid not have sufficient opportunity to cross examine them. Thedetailed explanation submitted by the petitioner for the allegedmisconducts have not been properly considered by the enquiryofficer and the disciplinary authority before they had arrived attheir conclusions.21. Based on the report of the enquiry officer, accordingto which all the charges levelled against the petitioner had beenproved, the State Government had arrived at a provisionalconclusion to impose the punishment of stoppage of increment forthree years, with cumulative effect, besides the recovery ofRs.4,500/-, in 10 monthly equal instalments, from the pay of thepetitioner, towards the loss said to have been caused to theGovernment.22. However, proper reasons are not found in the impugned https://hcservices.ecourts.gov.in/hcservices/ order, dated 25.4.2003, to impose the punishment of removal fromservice on the petitioner. It has been stated in the said orderthat the punishment of removal from service had been imposed on thepetitioner in the light of the views of the Tamil Nadu PublicService Commission. However, it is not clear as to the nature ofthe materials available before the Tamil Nadu Public ServiceCommission, based on which it had given its opinion to remove thepetitioner from service, in stead of giving its opinion on theoriginal proposal of the Government to impose a lesser punishmenton the petitioner. The question as to whether it was open to theTamil Nadu Public Service Commission to enhance the punishment,instead of giving its opinion on the punishment originally proposedby the Government, has not been answered by the respondents.23. However, at this stage of the hearing of the writpetition, the petitioner had filed an affidavit stating that, inthe event of this Court accepting the contentions and allowing hiswrit petition, the petitioner is willing to forgo 50% of hisbackwages. 24. In such circumstances, this Court is of the consideredview that the ends of justice would be met if the impugned order ofthe first respondent, dated 25.4.2003, is set aside, and ifappropriate directions are issued to the respondents, with regardto the payment of backwages and other service benefits of thepetitioner. Accordingly, the impugned order, dated 25.4.2003, isset aside and the respondents are directed to calculate anddisburse the amounts due to the petitioner, as a consequence of thesetting aside of the said order, including the backwages and otherretiral benefits that would have accrued to him, within a period oftwelve weeks from the date of receipt of a copy of this order.However, it is made clear that the petitioner would be eligible toget only 50% of the backwages for the period when he was out ofservice, in view of the affidavit filed by him before this Court.No costs. Sd/Asst.Registrar/true copy/ Sub Asst.Registrarcsh https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Governmentof Tamilnadu, Rural Development (E2) Department,Fort St. George, Chennai-600 009.2.The District Revenue Officer,Tiruchirapalli District,Tiruchirapalli.3.The Tahsildar,Manaparai Taluk, Manaparai,Tiruchirapalli District.+ 1 cc to Mr.K.Rajkumar, Advocate, SR No.19482+ 1 cc to the Government Pleader, SR No.19026Writ Petition No.33644 of 2004klt(co)pmk/28.5.2009.