Madras High Court
N.Sivakumaran vs )The State Of Tamilnadu on 12 September, 2008
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2008
CORAM
THE HON'BLE MR. JUSTICE S.MANIKUMAR
W.P.No.27639 of 2006
N.Sivakumaran ... Petitioner
vs
1)The State of Tamilnadu
rep. by the Secretary to Govt.,
Revenue Department,
Fort St. George,
Madras-9.
2)The Principal Commissioner and
Commissioner of Revenue
Administration,
Ezhilagam,
Chepauk,
Madras-5.
3)The Commissioner/Tribunal
for Disciplinary Proceedings,
Disciplinary Proceedings Office,
Marketing Committee Building,
Ramanathapuram,
Coimbatore.
4)The Secretary,
Tamilnadu Public Service Commission,
Madras-2. ... Respondents
This petition came to be numbered by transfer of O.A.No.173 of 1996 on the file of the Tamil Nadu State Administrative Tribunal praying for the issuance of a Writ of Certiorarified Mandamus to call for the records on the file of the fourth respondent in connection with the order passed by him in his proceedings letter No.3134/DCD-D2/95 dated 3.11.1995 and also on the file of the first respondent in connection with the order passed by him in his proceedings G.O.(1D) No.669 dated 14.12.1995 and quash the same and direct the respondents to reinstate the petitioner in service with all monetary and service benefit.
For Petitioner ... Mr.R.Singaravelan
for Mr.R.Vijayakumar
For Respondents ... Mr.S.Gopinathan
Additional Government Pleader
O R D E R
A Village Administrative Officer removed from service pursuant to departmental enquiry of charges of receipt of illegal gratification and misappropriation has challenged the proceedings of the Tamil Nadu Public Service Commission dated 3.11.1995 and the orders of the Government in G.O.Ms.No.669 dated 14.12.1995 and consequentially for a direction to the respondents to reinstate him in service with service and monetary benefits.
2. Though the petitioner has raised several contentions assailing the impugned orders on the grounds of lack of evidence, non-consideration of his explanation in proper perspective and other grounds, Mr.R.Singaravelan, learned counsel for the petitioner submitted that the appellate authority has failed to consider the statutory appeal with reference to the parameters set out in Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
3. The short facts of the case are as follows:
The petitioner was an Administrative Officer. He was placed on defence in DE No.3/88 dated 15.3.1988 by the Disciplinary Proceedings Tribunal for the following charges.
"Charge-1: That while he (Applicant) was working as Village Administrative Officer, Potteneri Nallagoundanpatti Village and Veerakkalpudur Village, Mettur Taluk, Salem District, actuated by corrupt motive and in abuse of his (Applicant's) official position and authority, on 14.2.2007 at about 7.00 A.M. When Thiru Mohammed Mohideen, S/o.Shahul Hammed,Asia Grocery Shop Moolakkadai, Kunjandiyur, Mettur Taluk, met him(Applicant) and showed the memo received by him from the Tahsildar, Mettur requesting him to produce a certificate of his non-involvement in any civil/criminal cases and also a certificate to the effect that he had sufficient means to run a Geocery shop, for the purpose of renewal of his licence for dealing in foodgrains and essential commodities and requested him (Applicant) to issue the aforesaid certificates, he (Applicant) after going through the memo, demanded from the said Mohammed Mohideen and illegal gratification of Rs.150/- for issuing the certificates, when the said Mohammed Mohideen informed that he had not brought so much money, he (Applicant) told him that he need not worry since the following two days were holidays, that he could pay the money in the evening and get the certificates. In pursuance of the aforesaid demand and direction, on 15.2.1987 at about 8.30 A.M. He (Applicant) had received the illegal gratification of Rs.150/- from the said Mohammed Mohideen at his (Applicant's) residence at No.36/240 Thermal Plant, V.O.C. Nagar, Thangammapuripattinam, Mettur Dam R.S. and issued him the certificates as requested by him.
Charge No.2:
That, while he (Applicant) was working as Village Administrative Officer, Pottaneri Nallagoundanpatti Village and Veerakalpudur Village, Mettur Taluk, Salem District actuated by corrupt motive and in abuse of his official position and authority, on 11.2.87 and 12.2.87 with dishonest motive and with intention to obtain wrongful gain to himself (Applicant) he (Applicant) had collected a total sum of Rs.120/- at Rs.15/- each from:
1.Tmt.Venkateswari W/o.Balasubramaniam Puduchampalli, Veerakalpudur Village.
2.Tmt.Mani, W/o.Madesh, Puduchampalli
3.Tmt.Kaveri W/o.Vijayarathinam, Puduchampalli
4.Tmt.Thulasimani, W/o.Arumugham, Puduchampalli
5.Tmt.Kaveri, W/o.Angappan, Puduchampalli
6.Tmt.Pappal, W/o.Sankaran, Karumalaikudal
7.Tmt.Suseela, W/o.Arjunan, Puduchampalli and
8.Tmt.Narasammal, W/o.Palaniappan, Puduchampalli at his (Applicant's) residence at No.36/240, Thermal Plant Road, V.O.C.Nagar, Thangammapuripattinam, Mettur Dam, R.S. for enrolling them under the Labour Insurance-cum-Retirement Benefit Special Scheme and accounted for only Rs.80/- at Rs.10/- each by writing the receipt on 15.2.87 after his (Applicant's arrest in trap case (vide Charge-1 above) and he (Applicant) had misappropriated the balance amount of Rs.40/-.
Charge No.3:
That, while he (Applicant) was working as Village Administrative Officer, Pottaneri Nallgroundampatti Village and Veerakalpudur Village, Mettur Taluk, Salem District between 11.2.1987 and 14.2.1987, he (Applicant) had demanded and received illegal gratification of a total sum of Rs.125/- from 11 persons at his residence No.36/240 Thermal Plant Road, V.O.C. Nagar Thangammapuripattinam, Mettur Dam R.S. for issuing community and Income Certificates to .
Charge No.4:-
That, he (Applicant) being a public servant bound by Tamil Nadu Government Servant's Conduct Rules, 1973, and bound to report to the prescribed authority any transaction concerning any movable property exceeding Rs.2000/- in value had failed to report to the prescribed authority the purchase of a Luna Moped Motor Cycle hearing Registration No.TDM/3405 in his (Applicants) name for Rs.4000/- on 21.2.1984 from Tvl.ARAS and Pv.Pv., Salem-7 and thereby he (Applicant) had contravened the provisions under rule 7(2) of the Tamil Nadu Government Servants Conduct Rules 1973."
4. The Tribunal for Disciplinary Proceedings examined as many as 23 witnesses, marked 40 documents and six material objects. The petitioner filed defence exhibits and written statement. After considering the evidence on record, defence and arguments of the petitioner, the Tribunal held that the first charge relating to receipt of illegal gratification as proved. The second charge was not substantiated by prosecution and therefore it was not proved. The third charge was also held not substantiated. Regarding 4th charge, the Tribunal found that there was no proof for the contention of the petitioner that he had sent a communication to the competent authority, informing about the purchase of the vehicle through the office of the Tahsidlar and therefore, held that the 4th charge as proved. The Principal Commissioner and Commissioner of Revenue Administration, agreed with the findings of the Tribunal and arrived at the conclusion that the petitioner was guilty of charges 1 and 4. As the charges related to question of moral turpitude, the disciplinary authority dismissed the petitioner from service. When an appeal was preferred to the State Government, contending inter alia that the order imposing penalty is unsustainable in law, bristles with arbitrariness and improper appreciation of evidence, the matter was referred to the Tamil Nadu Public Service Commission to offer its opinion. The commission on consideration of the entire records and the findings of the disciplinary authority, observed that charge No.1 relating to acceptance of illegal gratification involving moral turpitude is highly grave in nature. The Commission further observed that charge No.4 relates to lapse on the part of the delinquent in observing conduct rules applicable to Government Servants. By observing that it is most undesirable and unhealthy to continue the petitioner in service, the Tamil Nadu Public Service Commission, advised the Government to dismiss the appeal preferred by the petitioner as devoid of merits. After extracting the episode relating to corruption and misconduct in violating the Government Servant Conduct Rules, the Government rejected the appeal preferred by the petitioner as follows:
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5. Referring to Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules 1973 and placing reliance on the decision in Director (Marketing), Indian Oil Corporation Limited and another v. Santhosh Kumar reported in 2006 11 SCC 147, the Divisional Authorised Officer, Kothagudam and others v. Madusudanan Rao reported in 2008 2 SCC 617 and M/s.Steel Authority of India Limited v. Sales Tax Officer, Rourkela-1 Circle and others reported in 2008 5 SCC 281, Mr.R.Singaravelan, learned counsel for the petitioner submitted that though the Tribunal for Disciplinary Proceedings have held that charges 2 and 3 as not proved, the Government while rejecting the statutory appeal preferred by the petitioner, came to an erroneous conclusion that all the charges are proved and confirmed the penalty imposed by the disciplinary authority. Referring to paragraph 8 of the appellate authority's order, he further submitted that there is absolutely no indication, (1) as to whether the appellate authority had considered the facts on which the penalty was imposed were properly established and (2) whether the facts established offered sufficient ground for taking action against the petitioner. He further submitted that the appellate authority had considered only one aspect, ie., the quantum of penalty and failed to consider the other important parameters, which are imperative in nature. He further submitted that the appellate authority being the final fact finding authority ought to have examined the entire records and passed a speaking order, setting out the reasons for rejecting the appeal. According to him, omission to examine the grounds raised in the memorandum of appeal, with reference to the statutory provisions amounts to failure to exercise the statutory duties. He further submitted that if the statute mandates a particular thing to be done in a manner, the appellate authority has to do the thing in the same manner and not otherwise. On these grounds, he prayed that the order of the appellate authority be set aside with direction to consider the matter afresh in the light of Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
6. Per contra, Mr.S.Gopinathan, learned Additional Government Pleader made a preliminary objection that the petitioner in the Original Application filed before the Administrative Tribunal has not raised any ground with regard to the alleged infirmity in the appellate authority's order and therefore it is not open to him to raise the same for the first time before this court and therefore, prayed to reject the same as in limini. Without prejudice to the above, inviting the attention of this Court to paragraphs 7 and 8 of the impugned order, he submitted that the appellate authority has carefully considered the memorandum of appeal and reading of the order would indicate that the appellate authority has referred to charges 1 and 4 alone and did not hold that all the charges as proved and therefore, he submitted that the contention of the petitioner alleging non application of mind has to be repelled.
7. Narration of facts in brief, the finding arrived at by the Tribunal for disciplinary proceedings in the impugned order would itself show that the appellate authority has considered as to whether the order was passed on facts which were established and that there was sufficient ground for imposing the penalty of removal from service. He further submitted that while concurring with the views of the disciplinary authority, the appellate authority is not required to write a detailed order and it is suffice that the appellate authority passes an order after due application of mind.
8. Having regard to the serious misconduct of receipt of illegal gratification which stood proved by the Tribunal for Disciplinary Proceedings, the appeal grounds and on careful examination of the opinion offered by the Tamil Nadu Public Service Commission, the appellate authority has passed the order rejecting the appeal. According to the learned Additional Government Pleader for the respondents, the impugned order is perfectly in order and therefore prayed for dismissal of writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
9. As this court has been called upon to decide the only question as to whether the appellate authority has disposed of the statutory appeal with reference to Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, it is necessary to extract the rule dealing with the power of the appellate authority.
"23. (1) In the case of an appeal against an order imposing any penalty specified in rule 8 or 9, the appellate authority shall consider-
(a) whether the facts on which the order was based have been established;
(b) whether the facts established afford sufficient ground for taking action; and
(c) whether the penalty is excessive, adequate or inadequate and pass orders
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; provided that-
(i) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv), (v)(c), (vi), (vii) and (viii) of rule 8 and an inquiry under sub rule (b) if rule 17 has not already been held in the case, the appellate authority shall, subject to the provisions of sub-rule (c) of rule 17, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of sub-rule (b) of rule 17 and thereafter, on a consideration of the proceedings of such inquiry make such orders as it may deem fit;
(ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv), (v)(c), (vi) (vii) and (viii) of rule 8 and an inquiry under sub-rule (b) of rule 17 has already been held in the case, the appellate authority shall make such orders as it may deem fit; and
(iii) no other imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of sub-rule (b) of rule 17 of making representation against such enhanced penalty;
2. Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers, for reasons to be recorded, that error or defect was not material and has neither cause in justice to the person concerned nor affected the decision of the case."
10. The issue as to whether three parameters contained in Rule 23(1) are mandatory is no longer res integra. The said issue came up for consideration before this Court in G.Srinivasan v. Government v. Government of Tamil Nadu, represented by the Commissioner and Secretary to Government, Revenue Department and Ors. reported in 1983 (2) MLJ 513. The facts of the reported case are a head Assistant was charged for demand and acceptance of bribe and a Criminal action was initiated under Section 5(1)(a) and 5(2) of the Prevention of Corruption Act, 1947. He was arrested by the Police and lateron, the proceedings initiated under the Prevention of Corruption Act were dropped. It was left to the department, the disciplinary proceedings ordered in relation to acceptance of bribe, resulted in dismissal from service. The Board of Revenue rejected the appeal by stating as follows:-
"The Board has examined the appeal petition of Thiru.G.Srinivasan, with connected records. It sees no reason to interfere with the orders of the Collector of Tirunelveli. The appeal is according rejected as devoid of merits."
While adjudicating the upon the issue, a Division Bench of this Court, at paragraph 8, held as follows:
"8. Coming to the second question as to whether the Board of Revenue has acted in accordance with Rule 23 of the Tamil Nadu Civil. Services (Classification, Control and Appeal) Rules, we feel that the Board of Revenue has not kept in mind the requisites necessary, under Rule 23. The order of the Board of Revenue dismissing the appeal has been extracted above. The order does not give any reason as to why it confirmed the order of dismissal except saying that it did not see any reason to interfere with the order of the Collector. We are of the view that having regard to the language used in Rule 23. the dismissal of the appeal by the Hoard of Revenue is not a proper disposal as contemplated by Rule 23. Rule 23 provides as to what the appellate authority should do while considering the appeal filed by a delinquent officer against the penalty imposed on him. Rule 23(1) gives a mandate to the appellate authority to consider: (a) whether the facts on which the order was passed have been established; (b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate. Thus it is clear: from a perusal of Rule 23 that the appellate authority is enjoined to consider whether the facts on which the order of dismissal was passed had been established and the facts established afford sufficient grounds for taking action and whether the penalty is excessive or adequate . Rule 23 directs the appellate authority to consider certain matters before passing the appellate order. The order of the appellate authority must therefore ex fade show that the matters referred to in Rule 23 have been considered by the appellate authority before it passed its order. In this case, the order of the appellate authority merely says that it sees no reason to interfere with the order of the Collector and it does not indicate that it took all the matters referred to in Rule 23 into consideration before rejecting the appeal. Obviously, the appellate authority the Board of Revenue in this: case, appears to have overlooked the criteria referred to in Rule 23, as otherwise, it would have at least referred to the relevant matters contained in Rule 23 in its order. Dealing with this ground of attack, Mohan, J., has stated that according to the recent trend of opinion, if the appellate authority confirms the order in appeal, the appellate authority need not give reasons. It may be that in a case where there is no statutory provision dealing with the exercise of power by the appellate authority we have to fall back to the general principle as to whether the appellate authority is bound to give reasons for his affirmation of the order of dismissal; but where the power of the appellate authority is circumscribed by a statutory provision such as Rule 23 as in this case, the appellate authority should act within the confines of that rule and he cannot pass an order arbitrarily without considering the matters referred to in Rule 23. We are therefore of the view that the order of the Board of Revenue, dated 4th September, 1976, stands vitiated for violation of Rule 23. On this ground, the order of the Board of Revenue which confirms the order of dismissal passed against the appellant will stand quashed and the Board of Revenue has to pass a fresh order on the appeal filed by the appellant which should be treated as pending."
11. While explaining the word "consider" employed in Rule 27(2) of the Central Civil Services (Classification and Appeal) Rules, 1965, the Supreme Court in R.P.Bhatt v. Union of India reported in AIR 1986 SC 1040, at Paragraphs 4 and 5, observed that, "The word 'consider' in R.27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) Whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) Whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) Whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc, the penalty, or may remit back the case to the authority which imposed the same. R.27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.
There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any findings on the crucial question as to whether the findings of the disciplinary authority were unwarranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (2) of R.27(2), viz., whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of R.27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside."
12. Following the R.P.Bhatt's case, the Supreme Court in Ram Chander v. Union of India reported in 1986 (3) SCC 103, held that the Appellate Authority must not only give a hearing to the government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal.
13. In Arokiadoss v. The Deputy Commissioner of Police, reported in 1989 Writ L.R. 274, this Court, while dealing with the powers of the appellate authority under Rule 6(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, at Paragraph 4, held as follows:
"the order of the appellate authority does not indicate, whether the appellate authority considered the materials on record in the light of Rule 6(1) of the Rules. He should have discussed the relevant evidence and found whether the facts on which the order of the disciplinary authority was based have been established. He should have also considered whether the facts afford sufficient ground for taking disciplinary action and whether the penalty is excessive, adequate or inadequate. As the order of the appellate authority does not show that he has considered the relevant matters prescribed under R.6(1) of the Rules, the order is vitiated."
14. In G.M.(P.W.), Canara Bank v. M.Raja Rao reported in 2001 (II) LLJ 819, the Supreme Court had an occasion to consider as to whether the appellate authority is required to pass a detailed order, while concurring with the decision of the disciplinary authority. The penalty imposed was affirmed by the learned single Judge of the Karnataka High Court. On appeal, the Division bench held that the disciplinary Authority, while agreeing with the report of the Enquiry Officer, is required to give reasons under Banking Regulation and therefore, by observing that there was failure on the part of the appellate authority, set aside the order of removal. Testing the correctness of the Division Bench order, the Apex Court, at Paragraphs 4 and 5, held as follows:
"4. ...........The order of the Disciplinary Authority unequivocally indicates that he has gone into the findings of the Enquiring Authority and agreed with the same. When a Disciplinary Authority agrees with the findings and conclusions of the Enquiring Authority, it is not necessary in law to give any detailed reasons as to why he intends to agree with the findings of the Enquiring Authority. It is of course true that in the matter of award of punishing if Disciplinary Authority considers materials other than the materials which had been produced before the EO then the delinquent must be given a notice thereof or else the conclusions of the Disciplinary Authority would get vitiated.
5. So far as the order of the Appellate Authority is concerned, it is undoubtedly true that as provided in the Regulation, the Appellate Authority is required to pass a reasoned order."
15. In Janarthanan Assistant Executive Engineer, Palacode v. The Chief Engineer Distribution, Tamil nadu Electricity Board and others reported in 2004 Writ L.R 636, this Court, at paragraph 7, held that the appellate authority has merely confirmed the order of the disciplinary authority, stating that no new points had been urged. If an appeal has been filed, it is the duty of the appellate authority to consider the contentions raised by application of independent mind. That having not been done, such order passed by the appellate authority cannot be sustained.
16. A policeman was inflicted with a penalty of reduction in time scale of pay by three stages for three years with cumulative effect on the charges of insubordination of abusing his superior officer and acting in a manner of unbecoming a Government servant. The appellate authority dismissed his appeal without giving any reasons. When the order was tested by this Court, following the decision rendered in Arokiadoss 's case, a learned single Judge of this Court in K.Kandasamy v. Deputy I.G., of Police, reported in 2006 (4) MLJ 1382, at Paragraph 7, held as follows:
"It is seen from the aforesaid portion of the impugned order that the Appellate Authority did not deal with any of the grounds of appeal raised by the petitioner. A departmental appeal is a continuation of the original proceedings. It is needless to point out that the last opportunity available for a delinquent, to canvass his case on merits, is at the appellate stage. After the appeal, a delinquent loses his right to challenge any disciplinary proceedings on merits, since the scope of interference on a revision or on a writ petition is very limited. Therefore, the rules themselves contemplate Appellate Authorities to go into the factual details and consider all the grounds of appeal before deciding an appeal. Unfortunately, the first respondent has chosen to dismiss the appeal by a non-speaking order and hence the Appellate Authority's order is liable to be set aside."
17. In Vanaja, N. v. The Board of Directors of Tamil Nadu Small Industries Development Corporation Ltd., reported in 2006 (4) CTC 52, at Paragraph 3 and 4, this Court held as follows:
"3. It is brought to the notice of this Court, Rule 6.25-A of the Service Rules of Tamil Nadu Small Industries Development Corporation Ltd., which contemplaes that when an Appeal is preferred imposing penalties specified in Rule 6.15, the Appellate Authority shall consider whether the penalty imposed is adequate, inadequate or severe and pass orders (i) confirming, enhancing, reducing or setting aside the penalty or (ii) remitting the case to the authority which imposed on the penalty with such direction as it may deem fit to the Appellate Authority to call for the records in respect of any disciplinary proceeding and review any order made under these rules and pass such orders as it may deem fit in the circumstances of the case.
4. After going through the order impugned in the Writ Petition, this Court is prima facie satisfied that the Appellate Authority except informing that after detailed examination a resolution has been passed to reject the Appeal made by the petitioner and confirm the order dated 01.06.2005 passed by the Managing Director, nothing has been stated, has not followed the Rules contemplated under Rule 6.25-A of the above said Rules. Except saying that after detailed examination, no reason was given as specified under Rule 6.25-A of the above said service rules as to whether the Appellate Authority had considered that the punishment imposed was adequate or inadequate. What is the detailed examination is also not mentioned in that order."
18. In Director (Marketing), Indian Oil Corpn. Ltd., v. Santhosh Kumar reported in 2006 (11) SCC 147, the order of the appellate authority was assailed on the ground of total non-application of mind, as the said authority, in verbatim, extracted the order of the disciplinary authority. The orders of the disciplinary as well as appellate authority, as extracted in the above reported judgment, are produced hereunder:
"10. For the sake of convenience, we extract both the orders available at pp. 51-52 of the paper-book:
I have carefully gone through Shri Santosh Kumars [Emp.No. 19957, ex-AM (Operations), Hissar depot] appeal dated 25-3-2000 together with all papers relating to the disciplinary case initiated against him vide Charge-sheet No. IR/1461/(N-113) dated 24-6-1997 in the capacity of the competent disciplinary authority.
I have applied my mind and I find Shri Santosh Kumar has not brought out any point in his appeal dated 25-3-2000 which may warrant any change in the said final order passed by me as the competent disciplinary authority.
The appeal of Shri Santosh Kumar is hereby forwarded to the Director (Marketing), the Appellate Authority for his kind consideration and orders.
General Manager (Operations) I have carefully gone through Shri Santosh Kumars [Emp.No.19957, ex-AM (Operations), Hissar depot] appeal dated 25-3-2000 together with all papers relating to the disciplinary case initiated against him vide Charge-sheet No. IR/1461/(N-113) dated 24-6-1997. Shri Santosh Kumar has preferred an appeal against the order of penalty of dismissal, inflicted upon him by General Manager (Operations), the competent disciplinary authority vide Reference No. IR/1461/(N-113) dated 30-12-1999 as a measure of disciplinary action against Shri Santosh Kumar.
I have applied my mind and I find that Shri Santosh Kumar has not brought out any point which may warrant my interference with the said orders passed by the competent disciplinary authority. Accordingly, I hereby reject the appeal of Shri Santosh Kumar. Let Shri Santosh Kumar be advised accordingly.
Director (Marketing)
19. The Supreme Court, while setting aside the orders passed by the above said authorities, directed the disciplinary authority therein to consider the detailed representation made by the respondent therein, the report of the Enquiry Officer in proper perspective and decide the matter afresh. The judgment rendered in National Fertilizers Limited and another v. P.K.Khanna reported in 2005 (7) SCC 597, was into consideration.
20. In Divisional Forest Officer, Kothagudem & Ors. v. Madhusudan Rao reported in 2008 (1) Supreme 617, after considering the Constitutional Bench judgment in State of Madras v. A.R.Srinivasan [AIR 1966 SC 1827], Som Datt Datta v. Union of India [(1969) 2 SCR 177], Tara Chand Khatri v. Municipal Corporation of Delhi [(1977) 1 SCC 472], R.P.Bhatt v. Union of India [(1986) 2 SCC 651] and Ram Chander v. Union of India [(1986) 3 SCC 103], the Apex Court, at Paragraph 19, held as follows:
"19. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum, but in our view, in the interests of justice, the delinquent officer is entitled to know atleast the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum."
21. In yet another decision in Bhikubhai Vithlabhai Patel v. State of Gujaraj reported in 2008 (4) SCC 144, the Supreme Court explained the word "consider", used in a statute, means, "to think it over", it connotes that there should be active application of mind. In other words the term "consider" postulates consideration of all the relevant aspects of the matter.
22. In M/s.Steel Authority of India Ltd., v. STO, Rourkela-I Circle & Ors. reported in 2008 (5) Supreme 281, the Supreme Court testing the correctness of an order passed by the Assistant Commissioner of Sales Tax against the assessment, at Paragraph 10, held as follows:
"10. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless."
23. It is worthwhile to reproduce the views of Lord Denning in M.R. in Breen v. Amalgamated Engg. Union [(1971) 1 All. ER 1148] and Alexander Machinery (Dudley) Ltd., v. Crabtree [1974 ICR 120 (NIRC)], found at Paragraph 11 of the above reported judgment.
"Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union, (1971) 1 All ER 1148, observed: The giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd., v. Crabtree [1974 ICR 120 (NIRC)], it was observed: Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before the Court. Another rationale is that the affected party can known why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.
24. In V.Arivuselvan v. State of T.N., reported in 2008 (5) MLJ 1327, this Court, at Paragraph 9, held as follows:
"Thus the appellate authority has to consider including other things, whether the order of the original authority has to be confirmed, enhanced, reduced or set aside. When specific grounds have been raised by the petitioner explaining the circumstances under which the said amount had been utilised and also pleading for mercy, it is expected that the appellate authority has to consider the said grounds taken by the petitioner. Admittedly, the appellate authority has not considered whether the punishment awarded to the petitioner is on the higher side and whether it requires any modification or reduction. As rightly pointed out by the learned counsel appearing for the petitioner, the appellate authority has not considered whether the punishment of removal imposed by the original authority is adequate or inadequate."
25. Another Division Bench of this Court in The Joint Commissioner of Police, Traffic Zone, Vepery & another v. Anandan, reported in 2008 Writ. L.R 86, held that, "under Rule 6(1), the appellate authority shall give a finding while considering the appeal as to whether the facts on which the order is based have been established, among other things - No such finding is given by the appellate authority except by stating that he has gone through the representation of the appellant therein, minutes and the order passed by the punishing authority - Hence, we are unable to confirm the order of the appellate authority as it is not a speaking order passed in terms of Section 6(1) of the Rules."
26. Examining the scope of the appeal preferred under the Service Rules vis-a-vis substantive right of the delinquent officer, this Court in W.P.No.39741 of 2006, dated 12.06.2008, held that right of appeal is a substantive right and the appellate authority is the final fact finding authority and essentially an appeal is a continuation of the original proceedings. The appellate authority has to review the evidence subject to the statutory limitations in Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. As judicial review under Article 226 of the Constitution of India is restricted to the decision making process and High Court cannot substitute the findings of the disciplinary or the appellate authority and interfere with the findings, except in the case of "perversity or no evidence", the delinquent, who has been inflicted with a penalty affecting his service conditions, has a statutory right to consider his appeal on law as well as on facts, subject to the parameters set out in Rule 6 of the above rules. The intention of the rule making authority is that the appellate authority has to pay attention to what has been said in the rule, so that the delinquent who has been inflicted with a penalty has the benefit of complete adjudication both on facts and law.
27. Courts have consistently held that if there is a statutory provision dealing with the exercise of powers by the original or appellate authority, the same has to be examined in the manner provided in the statute and not otherwise. In this regard, useful reference has to be made to the few decisions of the Supreme Court and this Court.
28. In T.Ramamoorthy v. The Secretary, Sri Ramakrishna Vidyalaya High School, etc. & Others reported in 1998 Writ. LR 641, at Paragraph 6, held as follows:
"If the statutory provision enacted by the Legislature prescribed a particular mode for terminating the service or dismissing the teaching or a non-teaching staff of a school, it can and has to be done not only in that manner alone, but it cannot be done in any manner too. This principle that where a power is given to do a certain thing in a certain way, things must be done in that way and not otherwise and that the other method of performance is necessarily precluded, is not only well settled, but squarely applies to this case also in construing the scope of the power as also its exercise by the management under Section 22 of the Act."
29. In U.P. State Bridge Corpn. Ltd. v. U.P. Rajya Setu Nigam S. Karamchari Sangh, [(2004) 4 SCC 268], the Supreme Court, at Paragraph 12, held as follows:
12. Although these observations were made in the context of the jurisdiction of the civil court to entertain the proceedings relating to an industrial dispute and may not be read as a limitation on the Courts powers under Article 226, nevertheless it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner.
30. In Captain Sube Singh v. Lt. Governor of Delhi [(2004) 6 SCC 440], the Supreme Court, at Paragraph 29, held as follows:
29. In Anjum M.H. Ghaswala, a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka.) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof.
31. The Supreme Court in State of Jharkhand v. Ambay Cements reported in 2005 (1) CTC 223, at Paragraph 27, held as follows:
"27. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation and where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case of obtaining prior permission is mandatory, therefore, non-compliance of the same must result in cancelling the concession made in favour of the grantee-the respondent herein."
32. In the case of an appeal against the order of imposing any penalty under Rules 8 or 9, the appellate authority shall consider as to whether (1) the facts on which the order was passed have been established, (2) the facts established offered sufficient ground for taking action and (3) the penalty is excessive, adequate or inadequate and passed orders confirming, enhancing, reducing or setting aside the penalty or committed remitting the case to the authority of which imposed the penalty, with such direction as it may be deemed fit in the circumstances of the case. Clause ii of Rule 23 (1) states that any error or defect in the procedural violation in imposing penalty may be disregarded by the appellate authority if such authority considers for the reason to be recorded in writing that the error or defect was not material and had neither caused injustice to the person concerned or affect the decision of the case. Powers of the appellate authority are circumscribed by a specific statutory provision which sets out the parameters to be examined by such authority. Unless the appellate authority examines the said aspects and assign brief reasons, mere extracting the views of the Tamil Nadu Public Service Commission does not satisfy the requirements of the statutory rule and that would not amount to giving of reasons. Besides looking into the factual aspects, the appellate authority is also enjoined with the duty to examine whether there is any procedural defect or violation or error in imposing the penalty and Clause (ii) of Rule 23(1) and discard any error or defect or procedural violation in imposing the penalty, if the authority finds that such error or defect or violation is not material or injustice to the person concerned or affect the decision. A penalty suffered by a government servant affects his service and monetary benefits and casts a stigma in his career. It is well known that penalty suffered by a government servant is counted for promotion to higher posts. Right to consider for promotion has been recognized as a statutory right and therefore, when the authority is vested with the jurisdiction of testing the correctness of penalty, circumscribed by certain parameters , it is imperative that such authority has to scrupulously follow the parameters set out in the rule. All the more, if the government servant is inflicted with a major penalty of removal or dismissal or compulsory retirement, whereby he is deprived of his right to earn through employment, the protection given under Article 311(2) of the Constitution of India, supported by statutory rules, the procedure to be followed and the factors to be taken into account by the disciplinary and appellate authorities cannot be simply disregarded by such authorities to the detriment of the employee. The Supreme Court in Delhi Transport Corporation v. DTC. Mazdoor Congress reported in 1991 Supp. (1) SCC 609, held that, "The right to life includes right of livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right of work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.
The right to public employment and its concomitant right to livelihood receive their succour and nourishment under the canopy of the protective umbrella of Articles 14, 16(1), 19(1)(g) and 21. Different articles in the chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible overlapping with the subject matter of what is to be protected by its various provisions particularly the Fundamental Rights. When the provisions of an Act or Regulations or Rules are assailed as arbitrary, unjust, unreasonable, unconstitutional, public law element makes it incumbent to consider the validity thereof on the anvil of interplay of Articles 14, 16(1), 19(1)(g) and 21 and of the inevitable effect of the impugned provisions on the rights of a citizen and to find whether they are constitutionally valid. The right to a public employment is a constitutional right under Article 16(1). All matters relating to employment include the right to continue in service till the employee reaches superannuation or his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution or the rules made under proviso to Article 309 of the Constitution or the statutory provision or the rules, regulations or instructions having statutory flavour made thereunder. But the relevant provisions must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees the right to live which includes right to livelihood, the deprivation thereof must be in accordance with the procedure prescribed by law conformable to the mandates of Articles 14 and 21 as to be fair, just and reasonable but not fanciful, oppressive or at vagary."
33. When the appellate authority fails to exercise his statutory duty, which affects the fundamental right of a person and if such authority disposes of an appeal, disregard to the manner circumscribed under the rules and fails to assign brief reasons, indicating his mind, it amounts to denial of justice. Prejudice is per se evident and therefore, even if the employee has not raised the question of non-consideration of his appeal in accordance with the statutory rules in the Writ Petition. Considering the deprivation of his right to livelihood, guaranteed under Article 21 of the Constitution of India, scuttling his right of his appeal being considered in the manner as provided in the statutory rules would be contrary to the spirit of the Constitutional Guarantee, viz., the right to life with dignity, which can be achieved through the income derived from his employment, the fundamental source. One should not forget that judiciary is the last resort of an aggrieved person and it is not enough that justice should be done and it must also be seen to be done. Useful reference can be made to a decision of the Supreme Court in State of W.B v. Anwar Ali Sarkar reported in AIR 1952 SC 75, and relevant portion in the judgment is extracted hereunder:
"It may be that justice would be fully done by following the new procedure. It may even be that it would be more truly done. But it would not be satisfactorily done, satisfactory that is to say, not from the point of view that the governments who prosecute, but satisfactory in the view of the ordinary reasonable man, the man in the street. It is not enough that justice should be done. Justice must also be seen to be done and a sense of satisfaction and confidence in it engendered."
34. Scrutiny of the appellate authority's order reveals that after extracting the summary of facts, at Paragraph 8 of the order, the appellate authority has merely stated that "the opinion of the Tamil Nadu Public Service Commission has been independently and carefully considered. The punishment of removal awarded by the Principal Commissioner and Commissioner for Revenue Administration is not excessive and therefore, the Government had decided to reject the appeal and accordingly, rejected the same." Thus it is manifestly clear that the appellate authority has passed a cryptic order and that there is a failure to consider the parameters set out in rule 23(1) of the said Rules. contention raised by the delinquent officer. In the interest of justice, the delinquent officer is entitled to know atleast the mind of the appellate authority in dismissing his appeal. No doubt, detailed reasons are not required to be given, but some brief reasons should be indicated in the order affirming the views of the disciplinary authority. As observed in Alexander Machinery (Dudley) Ltd., v. Crabtree [1974 ICR 120 (NIRC)], reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision.
35. The subjective satisfaction of the appellate authority is conspicuously absent regarding rule 23(1)(a) (b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. The order does not reflect active application of the mind of the appellate authority and to put it in the words of the Apex Court, it is 'lifeless', except examining the quantum of penalty.
36. In view of the above, the impugned order of punishment is set aside and the Writ Petition is partly allowed. The matter is remitted back to the appellate authority to consider all the parameters in Rule 23 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules and to pass an order on merits, within a period of four weeks from the date of receipt of a copy of this order. No costs.
.09.2008 Index: yes skm S. MANIKUMAR, J.
skm To
1)The State of Tamilnadu rep. by the Secretary to Govt., Revenue Department, Fort St. George, Madras-9.
2)The Principal Commissioner and Commissioner of Revenue Administration, Ezhilagam, Chepauk, Madras-5.
3)The Commissioner/Tribunal for Disciplinary Proceedings, Disciplinary Proceedings Office, Marketing Committee Building, Ramanathapuram, Coimbatore.
4)The Secretary, Tamilnadu Public Service Commission, Madras-2.
W.P.No.27639 of 200612.09.2008