Madras High Court
A.Arunagiri vs The Principal Commissioner & on 26 August, 2008
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.08.2008
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.No.29034 of 2006
(O.A.No.5069 of 1996)
A.Arunagiri ... Petitioner
vs.
1. The Principal Commissioner &
Commissioner for Revenue Administration,
Chepauk, Madras-5.
2. The Additional Collector,
Collector's Office,
Coimbatore. ... Respondents
Writ petition is filed for a Writ of Certiorari to call for the records on the file of the first respondent in connection with the order passed by him in his proceedings in Na.Ka.L1/38545/95, dated 05.07.1996 and quash the same.
For Petitioner : Mr.R.Singarvelan
For Respondents : Mr.S.Gopinathan,
Addl. Government Pleader
O R D E R
The petitioner has challenged the show cause notice, dated 05.07.1996 of the Principal Commissioner and Revenue Administration, Chennai, first respondent herein, issued in exercise of Rule 36(1)(ii) of the Tamil Civil Services (Discipline and Appeal) Rules, proposing to enhance the punishment awarded against him by the Additional Collector, Coimbatore, second respondent herein. The main contention of the petitioner is that the impugned show cause notice is not in accordance with Rule 36(1)(ii) and 17(b) read with Rule 27 of the above said rules and the same is barred by limitation.
2. Facts of this case are as follows:
The petitioner joined the service as Junior Assistant in the year 1973 and gradually, he was promoted to the post of Deputy Tahsildar in the year 1992. Certain charges were framed against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, relating to his service as Firka Revenue Inspector in the year 1985, for which, he submitted his explanation on 06.10.1986. On the basis of the enquiry report submitted by the Special Deputy Collector (Stamps), holding that all the charges levelled against the petitioner as proved, the second respondent, by order dated 27.03.1995 imposed a punishment of stoppage of increment without cumulative effect for one year.
3. The petitioner has further submitted that after a lapse of nearly one year and four months, the Principal Commissioner and Commissioner for Revenue Administration, Chennai, the first respondent herein issued a show cause notice, dated 05.07.1996, under Rule 36(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, proposing to enhance the punishment of stoppage of increment without cumulative effect for one year and that the petitioner was called upon to explain as to why the said punishment should not be enhanced to reduction in rank for two years. The correctness of the above show cause notice is put in issue before this Court.
4. The respondent in their counter affidavit have submitted that while going out for collection of land revenue in a jeep on 17.04.1985, the petitioner, former Revenue Inspector (South), Avinashipalayam, has intercepted some lorries, proceeding to Tirupur with rice and demanded and accepted Rs.2,400/- as illegal gratification from the lorry drivers. On the complaint made by the lorry drivers, the petitioner and Thiru.K.Destagir, the Jeep driver were placed under suspension on 31.05.1985 and 19.04.1985 respectively. Subsequently, they were reinstated in service. The charges framed against the petitioner by the Additional Collector, on 09.07.1986 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, are as follows:
"Charge No.1:
While going out for land revenue collection work on 17.04.1985, he interrupted two lorries smuggling rice and even after knowing that the lorries were transporting rice illicitly failed to seize the lorries.
Charge No.2:
He accepted a bribe of Rs.2,400/- from the lorry driver through the Jeep Driver violating Government Servant's Conduct Rules and Vigilance and Anti-Corruption Act.
Charge No.3:
He failed to inform the higher authorities, the smuggling of rice and thereby failed in his duties and connived with the smugglers."
5. After a detailed enquiry, the petitioner was inflicted with a penalty of stoppage of increment for one year without cumulative effect, vide orders of the second respondent, dated 27.03.1995. While considering the appeal preferred by Thiru.Dastagiri, Jeep Driver, the Principal Commissioner and Commissioner for Revenue Administration, Chennai, first respondent, felt that the punishment awarded by the second respondent is not commensurate with the gravity of the charges and therefore, issued a show cause notice, dated 05.07.1996 to the petitioner, under Rule 36(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, proposing to enhance punishment to that of reduction in lower rank for two years.
6. It is further submitted that the first respondent, being the Head of the Department, is competent to review the punishment. It is also the case of the respondent that the show cause notice is in accordance with the procedure contemplated in Rule 36(1)(ii) of the Rules and it is open to the petitioner to submit his explanation. It is also the case of the respondents that the limitation prescribed in Paragraph 1(ii) of Rule 36 does not apply to the Head of the Department, even after the period of six months as prescribed under the rule, he can exercise the power of suo-moto review. Hence, prayed for dismissal of the Writ Petition.
Submissions of the learned counsel appearing for the parties:
7. Referring to Rule 36(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, Mr.R.Singaravelan, learned counsel for the petitioner submitted that the said Rule confers power on the first respondent, Head of the Department to suo-moto review the order passed by the Original Authority, but exercise of such power is subject to the period of limitation and conditions provided under the said Rule. The punishment of stoppage of increment for one year without cumulative effect was inflicted by the Additional Collector, Coimbatore. According to the learned counsel for the petitioner, the first respondent, being the Head of the Department, cannot exercise suo-motu power of review, conferred under Rule 36(1)(ii), for the reason that as per the proviso to Rule 36, the appellate authority to whom, an appeal would lie, should be subordinate to him. In the case on hand, as the first respondent happens to be the appellate authority as well as the Head of the Department, he is statutorily prohibited from exercising the suo-motu review.
8. Learned counsel for the petitioner further submitted that even assuming that the first respondent is only an appellate authority, the powers under Rule 36(1)(ii) can be exercised by the appellate authority, within six months from the date of passing of the order and in the case on hand, proceedings for review commenced, after a period of one year and four months from the date of original order, inflicting a penalty is barred by limitation, without jurisdiction and therefore, liable to be set aside. In support of his contention that exercise of suo-moto power of review cannot be exercised by the appellate authority beyond six months and for the proposition that the the first respondent being the Head of the Department cum appellate authority cannot exercise the suo-motu power of review contrary to the proviso to Rule 36, he relied on decisions in P.Sabesan v. State of Tamil Nadu reported in 1984 W.L.R. 557, A.Thangavelu v. The Tamil Nadu Civil Supplies Corporation Limited reported in 1998 (1) CTC 283 and K.Parkunam v. The chairman of TNEB reported in 2003 (4) CTC 676.
9. Referring to G.O.Ms.No.406, Personnel and Administrative Reforms (Per.V) Department, dated 23.12.1996 and G.O.Ms.No.63, Personnel and Administrative Reforms (Per.V) Department, dated 02.02.1996, learned counsel for the petitioner submitted that the impugned show cause notice issued by the first respondent, being the head of the department and the appellate authority, beyond the period of six months is contrary to Rule 36(1)(ii) and without jurisdiction.
10. Inviting the attention of this Court to the order passed by the Tamil Nadu Administrative Tribunal in O.A.No.2370 of 1996, dated 22nd October, 2003, filed by the jeep driver, Thiru.Dastagiri, in which, the Tribunal had set aside the penalty of stoppage of increment without cumulative effect for one year, learned counsel for the petitioner submitted that when the co-delinquent had been exonerated of the charges, the first respondent ought to have withdrawn the impugned show cause notice, proposing to enhance the punishment awarded by the original authority.
11. Per contra, reiterating the averments made in the counter affidavit and inviting the attention of this Court to the gravity of charges, Mr.S.Gopinathan, learned Additional Government Pleader submitted that the first respondent, being the head of the Department, while considering the proportionality of the quantum of penalty to the gravity of the charges, is empowered to exercise the powers conferred on him under Rule 36(1)(ii) to enhance the penalty and therefore, there is no illegality in the impugned show cause notice. Referring to Rule 36(1)(ii) of the Tamil nadu Civil Services (Discipline and Appeal) Rules, he further submitted that the period of limitation as provided under the said rule is not applicable to the State Government as well as to the Head of the Department, when they decide to invoke the power of suo-moto review.
12. It is also the contention of the learned Additional Government Pleader that when the first respondent has proposed to enhance the punishment awarded by the original authority, viz., second respondent, an opportunity of being heard would be given to the petitioner to put forth his defence and therefore, it is well open to him to submit his explanation to the impugned show cause notice. He denied the contention of the petitioner that the show cause notice is tainted with mala fide and bias. For the above said reasons, he prayed for dismissal of the Writ Petition.
Heard the learned counsel for the parties and perused the materials available on record.
13. Points for consideration:
(i)Whether the appellate authority can exercise the suo-motu power of review after the period, prescribed under the Discipline and Appeal Rules?
(ii)If the Head of the Department happens to be the appellate authority under the service rules and the powers exercised by the above said authorities, being vested with the same person, can he exercise the suo-motu powers of review and if so, under what circumstances?
14. Before adverting to the facts of this case, it is necessary to extract the rule, under which, suo moto revisional powers are exercised by the appellate/head of the department/Government and other authorities. Rule 36 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules are extracted hereunder:
"Rule 36. (1) Notwithstanding anything contained in these rules-
(i) the State Government; or
(ii) the head of the department directly under the State Government, in the case of a Government servant serving in a department or office under the control of such Head of a Department, or departments, or
(iii) the appellate authority, within six months of the date of the order proposed to be reviewed; or"
(iv) any other authority specified in this behalf by the State Government by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on their or its own motion or otherwise call for the records of any inquiry and review any order made under these rules, after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to be authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as they or it may deem fit;
Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government Servant concerned has been given a reasonable opportunity of making representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (iv), (v)(c), (vi), (vii) of rule 8 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in the said sub rule (b) of rule 17 and except after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary:
Provided further that no power of review shall be exercised by the head of the department, unless-
(i) the authority which made the order in an appeal, or
(ii) the authority which made the order in appeal, or referred is, subordinate to him.
(2) No proceeding for review shall be commenced until after-
(i) the expiry of the period of limitation for an appeal; or
(ii) the disposal of the appeal, where any such appeal has been preferred."
15. This Court deems fit to extract the relevant Government Orders by which, the Government have amended Rule 36 and added Rule 37 to the above said Rules. In G.O.Ms.No.406, Personnel and Administrative Reforms (Per.N) Department, dated 23.12.1992, an amendment was issued to Rule 36 of the Tamil Nadu Civil Service (Classification, Control and Appeal) Rules and Rule 37 in the said Rules was introduced. The said Government Order reads as follows:
GOVERNMENT OF TAMIL NADU ABSTRACT PUBLIC SERVICES - Amendment to Rule 36 of the Tamil Nadu Civil Services (Classification, Control & Appeal) Rules and Addition of Rule 37 in the said rules - Notification. Issued.
PERSONNEL & ADMINISTRATIVE REFORMS (PER.N)DEPARTMENT G.O.Ms.No. 406 Dated : 23.12.1992 ORDER:
The language employed in rule 36(1) of the Tamil Nadu Civil Services (Classification, Control & Appeal) Rules seems to suggest that, though it deals only with the power of "review" of any order made under the said rules, in effect the said rule deals with the "revision" of the orders passed by the lower authority. In order to draw clear distinction between "revision" and "review the Government have decided to amend suitably rule 36 of the above said rules, and also incorporate rule, 37 therein on the lines of rules 29 and 29A of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
2. The following Notification will be published in the Tamil Nadu Government Gazette: -
NOTIFICATlON In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendments to the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules.
2. The amendments here by made shall come into force on the date off issue of this order.
AMENDMENTS In the said Rules,
1) Under the heading "PART IV-APPEALS" rule 36 shall be omitted;
2) After the heading "PART IV APPEALS" and the rules relating thereto the following heading and rules shall be added, namely:-
"PART V REVISION"
36. REVISION
1) Not withstanding anything contained in these rules i. the-state Government, or ii. The head of the department directly under the State Government, in the case of a Government Servant serving in a department or office under the control of such head of the department, or departments iii. the appellate authority, within six months of the date of order proposed to be revised, iv. any other authority specified in this behalf by the State Government by a general or special order, and within such time as may be prescribed in such general or special order may at any time, either on their or its own motion or otherwise call for the records of any inquiry and after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary and revise any order made under these rules, may
a) confirm, modify or set aside the order;or
b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty has been imposed; or
c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
d) pass such other orders as they or it may deem fit.
Provided that no order imposing or" enhancing any penalty shall be made by any revising authority unless the Government Servant concerned has been given a reasonable opportunity of making his representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (iv), (v.) (c), (vi), (vii) and (via) of "rule 8 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under sub rules (b) of rule 17 has not already been held in the case no such penalty shall be imposed except after an inquiry in themanner laid down in the said sub rule (b) of rule 17 which shall be subject to the provisions of sub-rule (c) thereof and except after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary:
Provided further that no power of revision shall be exercised by the head of the department, unless
i) the authority which made the order in appeal, or
ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
2) No proceeding for revision shall be commenced.
a) Where no appeal has been preferred, before the expiry of the period of limitation for an appeal, or
b) Where no appeal has been preferred, before the expiry of the disposal of such appeal.
c) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules"; and
3) After the heading "PART V "REVISON" and the rule thereunder as so added, the following heading and-rule, shall be added, namely:-
"PART VI-REVIEW."
37. Power to review The State Government may, at any time, either ontheir own motion or otherwise, review any order passed by them under these rules, when any new material evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to their notice:
Provided that no order imposing or enhancing any penalty shall be made by the state Government unless the Government servant concerned has been given a reasonable opportunity of making a representation against, the penalty proposed or where it is proposed to impose any of the major penalties specified in rule or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an inquiry under sub-rule (b) of rule 17 has not already been held in the case", no such, penalty shall be imposed except after an enquiry in the manner laid down in the said sub rule (b) rule 17 which shall be subject to the provision of sub-rule (c) thereof, and except after consultation with the Tamil Nadu Public Service Commission, where such consultation-is necessary"
(BY ORDER OF THE GOVERNOR) M. AHMED Secretary to Government
16. Rule 36(1)(iii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, underwent another amendment in G.O.Ms.No.62, Personnel and Administrative Reforms (N) Department, dated 02.02.1996 and the same is extracted hereunder:
GOVERNMENT OF TAMIL NADU ABSTRACT PUBLIC SERVICES - Amendment to Rule 36(1)(iii) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules Notification - Issued.
PERSONNEL & ADMINISTRATIVE REFORMS (PER.N)DEPARTMENT G.O.Ms.No. 63 Dated : 02.02.1996 Read:
G.O.Ms.No.406, Personnel and Administrative Reforms (Per.N) dated 23.12.1992 ORDER:
Prior to issue of orders in the G.O. read above, the power to review the orders passed in disciplinary cases were vested with the authorities concerned under rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. In G.O.Ms.No.406, Personnel-and Administrative Reforms, dated 23-12-92, the above said Rules have been amended introducing new rules 36 Revision (in the place of review under old rule 36) and 37 review.
2. In its judgement in T. A 217/91, dated 13-8-91, Tamil Nadu Administrative Tribunal has held that under rule 36 (1) (iii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the Government while exercising the power of review (revision under the amended rule) as the appellate authority, could pass orders under the said Rules only within a period of six months as specified in the said rule. It has also tether observed that if the intention of the rule maker is that six months time will not apply to the State Government, then specific mention would have been under rule 361(1) (iii) of the? said rules mentioning, appellate authority other than the Government. Subsequently, in another judgement in T. A. 141/91 dated 31-10-91, which is subsequent to above judgment, the Tamil Nadu Administrative Tribunal has held that the time limit of six months does not apply to the State Government or the Head of Department specified in the said rule 36 (1) (i) and (ii). The time limit of six months or such time as, may be prescribed in such general or special order is applicable only to the appellate authority of any authority covered by the said rule 3 (1) (iii) and (iv). Though the latter judgement which holds the field provides that the six months time limit will not apply to the State Government, in order to make the position clear and to avoid ambiguity, it has been decided to amend rule 36 (1) (iii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules to exclude the State Government so that thesix months time will not apply to the State Government.
3. The following Notification will be published in the Tamil Nadu Government Gazette.
NOTIFICATION In exercise of the powers conferred by the proviso to Article 3Q9 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendments to the Taniil Nad Civil Services {Discipline and Appeal) Rules.
2. The amendment hereby made shall come into, force on the 2nd February, 1996.
AMENDMENT In the said rules, in rule 36, in sub-rate (1) for clause (iii) the following clause shall be substituted, namely:-
"(iii) the appellate authority other than the State Government, within six months of the date: of the order proposed to be revised; or"
(BY ORDER OF THE GOVERNOR) S.SIVASUBRAMANIAN Secretary to Government
17. In the case on hand, the punishment has been imposed by the Additional Collector, Coimbatore, second respondent herein on 27.03.1995. It is not in dispute that the petitioner has preferred any appeal, challenging the penalty. As per the service rules, applicable to the petitioner, the Head of the Department, is the Principal Commissioner and Commissioner of the Revenue Administration, Chennai, the first respondent. Incidentally, he is also the appellate authority. The impugned show cause notice, dated 05.07.1996, issued under exercise of suo-motu review by the first respondent is after one year and four months.
18. Let me now consider some of the cases relating to the exercise of suo-motu power by the appellate authority after the period of limitation provided under the rules.
19. In A.Thangavelu v. The Tamil Nadu Civil Supplies Corporation Limited reported in 1998 (1) CTC 283, this Court had an occasion to consider the correctness of exercise of suo-moto power of review by the appellate authority, after six months. In the above reported case, the punishment of stoppage of increment for six months with cumulative effect was imposed on 12.04.1989 by the Regional Manager, disciplinary authority. The Managing Director of the Civil Supplies Corporation, in exercise of the suo-moto powers conferred upon him under Rule 36 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, set aside the order of the Regional Manager and remanded the matter for de-novo proceedings by framing charges. Thereafter, after framing charges and conducting the enquiry, the petitioner therein was removed from service on 25.02.1992. On examination of the rule 36 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, this Court at Paragragh 9, held as follows:
"9. The reading of the above Rule makes the position clear that if the appellate authority wants to review the order of the Regional Manager (Original authority) the same has to be done within six months from the date of the order. In this case, as seen from the proceedings of the respondent in Re. G-4/85431/89 dated 16.11.1989 i.e., beyond the period of six months prescribed under sub-clause (iii) of the above said Rules. 1 have already mentioned that the date of order and the review order dated 16.11.1989 has not been disputed by the learned counsel appearing for the petitioner. In the light of the above factual position. I am of the view that the first contention of the learned counsel appearing for the petitioner is well - founded. If the first contention is accepted there is no need to go into the other contentions raised by the learned counsel appearing for the petitioner. I am satisfied that the action of the respondent reviewing the order of the Regional Manager dated 12.4.1989 on 16.11.1989 is clearly prohibited as per sub-clause (iii) of the above referred Rule. Hence, I hold that the proceedings initiated by the respondents on 16.11.1989 is in violation of Rule 36(1) (iii) of the Rules. In those circumstances, as already stated I need not go into the other factual position. Accordingly, the impugned order based on the proceedings of the respondent dated 16.11.1989 is quashed."
20. In K.Parkunam v. The chairman of TNEB reported in 2003 (4) CTC 676, Superintendent Engineer/Disciplinary Authority has passed an order in November' 1993 to the following effect:
"... The explanation given by the Assistant Engineer is accepted due to the reasons putforth by him. He is instructed to be careful in future...."
After a lapse of period of limitation, the Chief Engineer, appellate authority, under the Manual on Conduct Regulations and Disciplinary Proceedings, passed an order on 16.07.1999, imposing a punishment of stoppage of increment. The said order was also confirmed in appeal, by order dated 27.10.2000, indicating that the appellate order was in exercise of suo-motu power of review. On careful scrutiny of the power of review provided in Regulation 25 of Manual on Conduct Regulations and Disciplinary Proceedings issued by the Board, this Court held that in the absence of any review by the Board or by the Chairman, the Chief Engineer, appellate authority has no jurisdiction to initiate such proceedings, after the period of limitation, provided under the Regulations, and consequently, the order of penalty imposed by the Chief Engineer and ratified by the Chairman of the Board was set aside.
21. Let me now consider the decision of a Division Bench of this Court dealing with a case of exercise of power by the Head of the Department, who is incidentally the appellate authority under the service rules.
22. In P.Sabesan v. State of Tamil Nadu reported in 1984 W.L.R. 557, a Police Officer was exonerated of the charges on 19.05.1977, by the D.I.G (Food Cell), the appointing authority. Thereafter, a show cause notice, dated 25.09.1977 was issued under Rule 15(A) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, by the Inspector General of Police, Madras. Writ of Prohibtion filed for restraining the I.G. of Police, Madras from passing order under Rule 15(A), was dismissed. On appeal, it was contended by the appellant, Police Officer that the power of review under Rule 15-A of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, can be exercised by four authorities: (1) The State Government; (2) the Head of the Departments; (3) the Appellate authority, and (4) any Other authority specified in this behalf by the State Government by a general or special order. But, the power of review given to the Head of the Department is however, subject to a restriction under the proviso to the rule. It was further contended that as per the proviso to the rule, no power of review shall be exercised by the Head of the Department unless the appellate authority, which had passed the appellate order or the authority to which an appeal would be preferred against the original order is subordinate to him. At the relevant point of time, the Inspector General of Police was the Head of the Department and he also happened to be the appellate authority. It was contended before the Division Bench that as the appellate authority was not subordinate to the Head of the Department and the former cannot exercise the power of review in view of the prohibition under the proviso to the rule. On careful consideration of the rule position, the Division Bench held as follows:
"The proviso is specific and it says that if the authority to which an appeal would lie is not subordinate to the Head of the Department, then the latter cannot exercise the power of review. Admittedly, any order passed by the D.I.G. (Food Cell), is appealable to the second respondent, who happens to be the Head of the Department. Thus the appellate authority is not subordinate to the Head of the Department, both the powers, that is, the power of the Head of the Department and the appellate authority having vested in the same person. In such a case, the proviso prohibits the Head of the Department from exercising the power of suo motu review. Thus, proviso to R.15-A stands in the way of the second respondent exercising his suo motu review power under that Rule as he happens to be the appellate authority, in the case in which he proposes to exercise the power of suo motu review. Thus, the show cause notice issued by the second respondent proposing to exercise the power of review under R.15-A of the Rules should be taken to be without jurisdiction."
23. Reverting back to the facts of the case on hand, it is an admitted fact that the petitioner was imposed with a penalty of stoppage of increment without cumulative effect for one year, vide order, dated 27.03.1995, passed by the second respondent, disciplinary authority. By virtue of the amendment to Rule 36(i)(iii) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, prescribing a period of limitation, for exercise of suo-motu review by the appellate authority and in the light of the decisions in A.Thangavelu v. The Tamil Nadu Civil Supplies Corporation Limited reported in 1998 (1) CTC 283 and K.Parkunam v. The chairman of TNEB reported in 2003 (4) CTC 676, it is now well settled that the appellate authority has no jurisdiction to exercise the power of suo-motu review beyond the period of limitation, provided under the rules.
24. As stated supra, the Principal Commissioner and Commissioner for Revenue Administration, first respondent is the Head of the Department. As per the second proviso to Rule 36, no power of revision shall be exercised by the Head of the Department, unless the authority to which, the appeal would lie, where no appeal has been preferred, is subordinate to him. Admittedly, the first respondent is the Head of the Department and he is also the appellate authority. Thus the appellate authority is not subordinate to the Head of the Department and therefore, the powers of the Head of the Department and the Appellate Authority are vested under the same person. As held by the Division Bench of this Court in P.Sabesan v. State of Tamil Nadu reported in 1984 W.L.R. 557, second proviso to Rule 36 stands in the way of the first respondent from exercising his suo-motu review power, as he happens to be the appellate authority.
25. Reading of the Rule 37, inserted in G.O.Ms.No.406, Personnel and Administrative Reforms (Per.N) Department, dated 23.12.1992, makes it clear that only the State Government, may, at any time, either on their own motion or otherwise, review any order passed by them, when any new material evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to their notice. Such power under Rule 36(1)(iv) can also be conferred on any authority specified in this behalf by the State Government by a general or special order, and within such time, as may be prescribed in such general or special order may at any time, either on their own motion or otherwise.
26. The power of the Head of the Department to exercise the suo-moto review is circumscribed under the second proviso to Rule 36 and exercise of the same, beyond the restrictions imposed therein, should be taken to be without jurisdiction. It is settled legal position that the power conferred on the authority can be exercised in the manner provided under the statute and not otherwise. It is worthwhile to extract few decisions on this aspect in this regard.
27. In T.Ramamoorthy v. The Secretary, Sri Ramakrishna Vidyalaya High School, etc. & Others reported in 1998 Writ. LR 641, this Court 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."
28. 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.
29. 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."
30. In Pandit D Aher v. State of Maharashtra reported in 2007 (1) SCC 437, the Supreme Court, at Paragraph 19, held as follows:
"If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review."
31. The punishment of stoppage of increment without cumulative effect for one year was imposed on 27.03.1995 by the Original Authority. Show cause notice issued after nearly a lapse of one year and four months by the Principal Commissioner and Commissioner of the Revenue Administration, Chennai, first respondent, purporting to be under Rule 36(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, proposing to enhance penalty is without jurisdiction. The Judgement of the Division Bench of this Court in S. MANIKUMAR, J.
skm P.Sabesan v. State of Tamil Nadu reported in 1984 W.L.R. 557 squarely applies to the facts of this case and I have no hesitation to follow the same. As the impugned show cause notice is found to be without jurisdiction, this Court deems it fit not to transverse into the factual aspects.
32. In view of the above, the Writ Petition is allowed. No costs.
26.08.2008 skm To
1. The Principal Commissioner & Commissioner for Revenue Administration, Chepauk, Madras-5.
2. The Additional Collector, Collector's Office, Coimbatore.
W.P.No.29034 of 2006