Madras High Court
K.A.Annamalai vs The Chief Secretary To Government on 25 July, 2011
Author: N. Kirubakaran
Bench: N. Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.07.2011
CORAM:
THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN
W.P.No.26673 of 2009 &
M.P.Nos.1 and 2 of 2009 and 2 of 2010
K.A.Annamalai .. Petitioner
Vs.
1.The Chief Secretary to Government,
State of Tamil Nadu (Special-A) Department,
Secretariat, Chennai 9.
2.The Secretary to Government,
Public (Special-A) Department,
Secretariat, Chennai 9.
3.The Principal Secretary/
Special Commissioner and
Commissioner for Maternal, Child Health &
Welfare and Project Director, RCH Project /
Enquiry Officer,
5th Floor, DMS Complex, 359, Anna Salai,
Chennai 6.
4. The Chairman,
Selection Committee to IAS,
Department of Personnel and Training,
Government of India,
North Block, New Delhi.
(Cause tile amend as per order dated
M.P.No.1 of 2010 in W.P.No.26673 of 2009) .. Respondents
Prayer: This Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, to call for the records on the file of the first respondent in connection with the Charge Memo issued by him in Letter No.1748/2005-14 dated 24.11.2008 and also the order passed by the second respondent in Letter No.1748/2005-16 dated 19.08.2009 with the enquiry officer's report passed by the third respondent in Ref.No.PC/SHS/2009 dated 04.08.2009 in and quash the same and direct the respondents to promote the petitioner to the post of Indian Administrative Service in any one of the 19 existing vacancies in the State of Tamil Nadu with all monetary and service benefits.
For Petitioner : Mr.R.Singgaravelan
For Respondents : Mr.K.V.Dhanapalan
Additional Government Pleader (R1-R3)
----
O R D E R
The petitioner has challenged the proceedings initiated against him on the ground of jurisdiction and some other grounds. The charge against the petitioner is that while he was working as a District Revenue Officer, Kancheepuram, he granted patta in favour of Tmt.Rajeswari and others, who filed claim petition for grant of patta, to the extent of 48.52.0 hectares (119.84 acres) of land which was classified as "Government Anadheenam". A Charge Memo was issued under Rule 17(b) of the Tamil Nadu Civil Services (D&A) Rules on 18.11.2005. A reply was sent on 14.12.2005 and an Enquiry Officer was appointed on 20.01.2006. An enquiry was commenced and in the the middle of the enquiry, after recording the statements, the enquiry officer found that the charges were vague. Instead of closing the enquiry and dropping the charges as vague, the Enquiry Officer written a letter dated 25.7.2007 to the Government requesting to reframe the charges and the relevant portion reads as follows:
"In as much as five out of the six charges alleged against the Accused Officer revolve around charge (1) and are consequential to the first charge, it is the more important that there is no ambiguity in the first charge. But the first charge itself seems to suffer from ambiguity as seen from the latest clarification of CLA. In the reference it has been clarified that transfer to the claimant (rightful owner) from Anatheenam does not constitute reclassification whereas the first charge specifies that the Accused Officer has no authority or delegated power to change the classification by Dry Anatheenam implying reclassification from one category to another."
After saying so, she had suggested for reframing of charge No.1 as mentioned below:-
" It is therefore felt that unless charge No.1 is properly reframed, bringing out the nature of violation and the rule that is violated, any subsequent findings in the disciplinary proceedings is likely to be questione3d on technical grounds"
2. On that basis, the first respondent issued another Charge Memo on 24.11.2008 stating that the petitioner failed to protect the "Government Anadheenam lands" which were meant for Government purpose. The essence of the charge is that the petitioner declared the "Government Anadheenam" in S.No.41 of 2003 of Karungulipallam Village, Chenglepattu Taluk and restored in the name of late Muthukrishnan and transferred patta in the names of his legal heirs. Again the charges were reframed. The first respondent issued a fresh charge memo on 24.11.2008. A reply was given by the petitioner on 12.12.2008 and the Enquiry Officer submitted the report on 04.08.2009.
3. Based on the Enquiry report, a second show-cause notice was issued to the petitioner on 19.08.2009 and the petitioner gave his reply on 22.08.2009 and further reply on 30.08.2009. Now, the petitioner is before this Court challenging the charge memo dated 24.11.2008, issued by the first respondent and the orders passed by the second respondent on 19.08.2009 and also the second cause show notice dated 04.08.2009.
4. Mr.Singgaravelan, learned counsel appearing for the petitioner submits that the first charge memo was practically abandoned and the new charge memo was issued on the basis of the recommendation of the above enquiry officer which is not permissible as per the Rules. That apart, when the authority competent to impose the penalty had not issued the show-cause notice as contained in Rule 17(b) (ii) of the Tamil Nadu Civil Services (D & A) Rules, and the second show cause notice was issued by the Public Secretary, who is not the Disciplinary Authority/Competent to impose penalty. Therefore, the second show-cause notice is bad for want of jurisdiction. He further submitted that the second show-cause notice was issued mechanically without application of mind and without disclosing the material details, particularly, the findings of the Enquiry Officer, by which, the Enquiry Officer almost diluted the charges against the petitioner. Therefore, he seeks for quashing of the order.
5. Mr.K.V.Dhanapalan, learned Additional Government Pleader opposed the writ petition, stating that the charges originally framed were again reframed and after getting the Enquiry Officer's Report only, the second show-cause notice has been issued. Therefore, due process of law has been complied with.
6. It is seen that originally the charge memo was issued on 18.11.2005 on the ground that the petitioner declared "Government Anadheenam lands" and granted patta to the persons claimed to be the original owners of the land. The Enquiry Officer by a communication dated 25.07.2007, requested the Government to reframe the charges and the relevant portion reads as follows:-
"In as much as five out of the six charges alleged against the Accused Officer revolve around charge (1) and are consequential to the first charge, it is the more important that there is no ambiguity in the first charge. But the first charge itself seems to suffer from ambiguity as seen from the latest clarification of CLA. In the reference it has been clarified that transfer to the claimant (rightful owner) from Anatheenam does not constitute reclassification whereas the first charge specifies that the Accused Officer has no authority or delegated power to change the classification by Dry Anatheenam implying reclassification from one category to another."
A perusal of the Enquiry Officer's Communication would reveal that the charges made against the petitioner at the stage were not sustainable. Therefore, the Government accepting the report of the Enquiry Officer reframed the charges and issued a fresh charge memo on 24.11.2008. A reply was also given by the petitioner on 12.12.2008.
7. Thereafter, the enquiry was concluded by the very same enquiry officer, who recommended for reframing the charges. The findings of the Enquiry Officer read as follows:-
Charge No.1 is held to partly proved to the extent that the accused officer had no powers to declare the Anadheenam land (which is a government land) as private patta land. He has issued patta for the land, which has to be assigned under the provisions of RSO 15, exceeding his jurisdiction.
Charge No.2 is held as 'not proved'. The accused officer has contended that the certified copies were produced and verified by him. Photocopies have been kept for file purposes and no substantial differences have been established between the certified copies and the photocopies. The same documents have also been verified by the ASO, Thiruvannamalai.
Hence the charges held not proved.
Charge No.3 is partly proved to the extent that there was no direction by the CLA to issue patta The accused officer was asked to verify documents, possession and enjoyment of Government lands which he failed to do either by calling for reports from Thasildar / RDO or by personal enquiry during inspection.
Charge No.4 Charge proved to the extent that Charges 1 and 3 are proved.
Charge No.5 Charge proved to the extent that Charges 1 and 3 are proved.
Charge No.6 Charge proved to the extent that Charges 1 and 3 are proved.
The aforesaid findings only show that Charge Nos.1 and 3 alone were held partly proved that the petitioner exceeded his jurisdiction by issuing patta for the land, which is required to be assigned under the provisions of RSO. However, G.O.Ms.No.385, Revenue (Public) Department, dated 17.08.2004 would show that the DRO is clothed with powers to rectify any mistake in the Revenue Records including issuance of patta. Paras 4 and 5 of the said Government Order are usefully extracted as follows:-
"4.muR ,e;neh;tpid ftdkhf Ma;t[ bra;jJ. Mizah;. epy msit kw;Wk; epy thpj;jpl;lk;. rpwg;g[ Mizah; kw;Wk; tUtha; eph;thf Mizah; MfpnahuJ ghpe;Jiuapid Vw;W epy clik gjpntL jpl;lj;jpd; fPH; gjpt[fspy; jtW Vw;gl;oUe;jhy; mj;jifa jtWfis khtl;l tUtha; mYtyh; jPtpu tprhuiz bra;j gpd;dnu rhp bra;a ,aYk; vd;gjhy;. MuR Miz (epiy) vz;/921 tUtha;. ehs; 15/06/1991 y; kz;ly Jiw tl;lhl;rpah;fSf;F tH';fg;gl;l bghWg;g[fspy; ,Ue;J 23k; ,lj;jpy; cs;s "epy clik gjpt[ nk;kghl;L jpl;lj;jpd; fPH; Vw;gl;l jtWfis rhp bra;jJ (Rectification of defects in the updating of registry cases) vd;gij ePf;fp muR MizapLfpwJ/"
5/rpwg;g[ Mizah; kw;Wk; tUtha; eph;thf Mizah;. nkny gj;jp[ 4y; cs;s Mizapid bray;gLj;JtJld; epy clik gjpt[ nkk;ghl;Lj; jpllj;jpd; fPH;. tifg;ghL khw;w';fspy; (classification of land) ,J fhUk; Vw;gl;Ls;s jtWfis epth;j;jp bra;tjw;F mizj;J khtl;l tUtha;. mYtyh;fSf;Fk; jf;f mwpt[iufs; tH';fp. mjid fz;fhzpf;FkhW mwpt[Wj;jg;gLfpd;wdh;/"
8. Further, the petitioner issued patta as per the direction given by the Head of the Department in his letter dated 13.6.2001 and not independently. The said communication dated 13.6.2001 of the Commissioner for Land Administration addressed to the petitioner deals with the claim of Mrs.S.Vijayalakshmi with regard to the land comprised in S.No.41/3, Karunguzhipallam, Chengleput Taluk and paragraphs 6 and 7 read as follows:
"6/ nkw;;fhDk; N:H;epiyfis Ma;t[ bra;jjpy;. fPH;f;fhDk; tpgu';fs; bjhpatUfpd;wd ;/?
i) kDjhuh;fs;. gl;lhnfhUk; fpuhkk;. jkpH;ehL v!;nll;. rl;lj;jpd; fPH; tuhJ vd;gJ Mtz';fspd; K:yk; epr;rakhfp cs;sJ/ 1910?k; Mz;oy; eilbgw;w epythpj;jpl;lj;jpy; ,e;j g[yd; @fGbtsp@ g[wk;nghf;F vd jhf;fyhfpa[s;sJ/ mjd;gpd; ,e;epyk; kDjhuh;fspd; Kd;ndhh;fspd; mDgtj;jpy; ,Ue;jikf;fhd gjpt[bgw;w gj;jpu';fs; rkh;g;gpf;fg;gl;Ls;sd/
ii) * a{oMh; * ?f;F Kd;-gpd; cs;s *m* gjpntl;oid ghprPyid bra;jjpy;. epyclik nkk;ghl;Lj;jpl;lj;jpd;nghJ ,e;epy';fs; tptrhaj;Jf;F jFjpahd jPh;it Vw;gl;l jhpR epy';fshf ,Ue;jikahy; mit mdhjPdk; vd khw;wk; bra;ag;gl;L cs;sjhf fUj ntz;oa[s;sJ/ nkYk; *a{oMh;*?y; 41-1V. 1gp. 1rp?y; rpy egh;fSf;F gl;lh tH';fg;gl;Ls;sJ/ rk;ge;jg;gl;l epy';fs; kDjhuh;fsJ mDgtj;jpy;jhd; cs;sJ vd;gjw;F 1926 ? Kjy; bjhlh;r;rpahf Mtz';fs; rkh;g;gpf;fg;gl;Ls;sd/ 7/ vdnt. ,e;;neh;tpy; rk;ge;jg;gl;l epy';fs; v!;nll; xHpg;g[r;rl;l'fspd; fPH; tUtjpy;iy vd;gjhYk;. epy clik gjpt[ nkk;;ghl;Lj;jpl;lj;jpd; fPH; *mdhjPdk;* vd tifg;ghL bra;ag;gl;loUg;gpDk;. kDjhuh;fspd; bjhlh;r;rpahd mDtj;jpd; fPH; ,Ue;J tUtjhy; kDjhuh; nfhUk; epy';fSf;F Mtz';fs;-mDnghfk; Mfpatw;wpd; mog;gilapYk; epyclik nkk;ghl;Lj;jpl;l Mtz'fisg; ghprPyid bra;Jk; chpa tpjpKiwfspd;goa[k; jf;f eotof;if nkw;bfhs;SkhW nfl;Lf;bfhs;fpnwd;/ nkYk; ,jd; bghUl;L kDjhuhpd; kD kw;Wk; mjDld; bgwg;gl;l Miz efy;fs; kw;Wk; jpUtz;zhkiy cjtp epythpj;jpl;l mYtyhpd; foj efy;fSk; ,izj;J mDg;gpitf;fg;gLfpwJ/ mtw;iw bgw;Wf;bfhz;ljw;fhd xg;g[ifapid tpiue;;J mspf;FkhW nfl;Lf;bfhs;fpwnwd;/@ Therefore, the finding that the petitioner was working as D R O exceeded his jurisdiction while granting patta is without substance in view of G.O.Ms.No.385, Revenue (Public) Department, dated 17.08.2004. The petitioner was duly complying with the direction given by the Head of the Department and for that the petitioner cannot be found fault with. Therefore, in view of G.O.Ms.No.385 and the order passed by the Head of the Department, the Enquiry Officer's Report goes.
9. Rule 17(b)(ii) of the Tamil Nadu Civil Services (D & A) Rules is extracted here-under:-
(ii)After the inquiry or personal hearing referred to in clause (i) has been completed, the authority competent to impose the penalty specified in that clause is of the opinion, on the basis of the evidence adduced during the inquiry, that any of the penalties specified in Rule 8 should be imposed on the person charged, it shall, before making an order imposing such penalty, furnish to him a copy of the report of the inquiry or personal hearing or both, as the case may be, and call upon him to submit his further representation, if any, within a reasonable time, not exceeding fifteen days. Any representation received in this behalf within the period shall be taken into consideration before making any other imposing the penalty, provided that such representation shall be based on the evidence adduced during the inquiry only. It shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed.
Prided that in every case where it is necessary to consult the Tamil Nadu Public Service Commission, the disciplinary authority shall consult the Tamil Nadu Public Service Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty:
Provided further that in the case of a person appointed to a post in a temporary department by transfer from any other class or by recruitment by transfer from any service, the State Government may, at any time before the appointment of such person as a full member to the said post, revert him to such other class or service, either for want of vacancy or in the event of his becoming surplus to requirements or if the State Government are satisfied that he has got the necessary aptitude for work in the said post, without observing the formalities prescribed in this sub-rule."
It is not in dispute that the authority competent to impose the penalty is the Chief Secretary, who rightly had issued the charge memo. However, the second show-cause notice was not issued by the Chief Secretary and only by the Secretary, Public Department and therefore, for lack of jurisdiction also, the second show-cause notice has to fail. A reading of the second show-cause notice would reveal that it was issued mechanically without application of mind and without even discussing about the findings of the Enquiry Officer. As stated above, the Enquiry Report itself is contrary to the G.O.Ms.No.385, Revenue (Public) Department, dated 17.08.2004 and is liable to be set aside.
10. It is worth to mention that the Enquiry Officer herself found that the original charges framed against the petitioner were ambiguous and recommended to reframe charges. The Government accepted the recommendation and reframed the charges. Again the government appointed the very same Enquiry Officer to conduct the enquiry. Once the Enquiry Officer found that there was ambiguity in the charges and recommended for reframing of charges, the said Enquiry Officer should desist herself from conducting the enquiry. Therefore, on this ground also, the enquiry is vitiated on the basic principle that no one should be the Judge of his/her own cause. Aligu is non debet esse judex in propria causa guia non potest esse judex ele pers. In view of the above reasons the entire Proceedings are vitiated and accordingly, they are quashed. As stated above the writ petition is allowed. Consequently, connected miscellaneous petitions are closed. No costs.
11. Pursuant to the orders of this Court, pending disposal of the writ petition, the petitioner's name was considered for conferment of I.A.S, by the Selection Committee and has been kept in the sealed cover. In view of the disposal of the present Writ Petition, the Chief Secretary is directed to open the sealed cover and communicate the result to the petitioner. However, in case the petitioner's name was not positively considered for conferment of I.A.S because of the pending proceedings, which is quashed by this order and the petitioner's name is directed to be reconsidered by the authorities in the light of the order of this court, within a period of six weeks from the date of receipt of a copy of this order.
12. Call on 23.9.2011 for reporting compliance.
25.07.2011
r n s
Index : Yes / No.
Internet : Yes / No.
To
1.The Chief Secretary to Government,
State of Tamil Nadu (Special-A) Department,
Secretariat, Chennai 9.
2.The Secretary to Government,
Public (Special-A) Department,
Secretariat, Chennai 9.
3.The Principal Secretary/
Special Commissioner and
Commissioner for Maternal, Child Health &
Welfare and Project Director, RCH Project /
Enquiry Officer,
5th Floor, DMS Complex, 359, Anna Salai,
Chennai 6.
4. The Chairman,
Selection Committee to IAS,
Department of Personnel and Training,
Government of India,
North Block, New Delhi.
N. KIRUBAKARAN J.
r n s
W.P.No.26673 of 2009
25.07.2011