Madras High Court
S. Karuppaiah vs The Director Of Rural Development on 7 April, 2010
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07-04-2010
CORAM :
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
W.P. No. 4071 of 2005
WP Nos. 1059 and 5957 of 2007
and
W.P.M.P. No. 1456 of 2007
WP No. 4071 of 2005
S. Karuppaiah .. Petitioner
Versus
1. The Director of Rural Development
Chennai 600 015
2. The Collector
Tirunelveli
Tirunelveli District .. Respondents
WP No. 1059 of 2007
S. Karuppaiah .. Petitioner
Versus
1. The Director of Rural Development
Panagal Buildings, Saidapet
Chennai 600 015
2. The Collector
Tirunelveli
Tirunelveli District .. Respondents
WP No. 5957 of 2007
S. Karuppaiah .. Petitioner
Versus
1. The Director of Rural Development
Panagal Buildings, Saidapet
Chennai 600 015
2. The Collector
Tirunelveli
Tirunelveli District .. Respondents
WP No. 4071 of 2005: Petition filed under Article 226 of The Constitution of India praying for a Writ of Mandamus directing the respondents to grant all the retirement benefits to the petiitoner from the date of his retirement namely 30.09.2004.
WP No. 1059 of 2007: O.A. No. 7076 of 1999 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court praying to call for the records relating to the impugned order of the first respondent in Na.Ka.No.39423/98/VC.1.3 dated 07.07.1999 confirming the order of the second respondent in Gna.1/34334/96 dated 27.03.1998 and quash the same and grant all the consequential benefits.
WP No. 5957 of 2007: O.A. No. 1885 of 2002 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court praying to call for the records relating to the impugned order of the second respondent in Na.Ka.No.N1/78611/01 dated 27.03.2002 and quash the same and grant all consequential benefits to the applicant.
For Petitioner : Mr. P. Rajendran
in all the writ petitions
For Respondents : Mrs. Lita Srinivasan
Government Advocate
in all the writ petitions
COMMON ORDER
The petitioner has filed WP No. 4071 of 2005 praying for a Writ of Mandamus directing the respondents to grant all the retirement benefits to the petiitoner from the date of his retirement namely 30.09.2004.
2. WP No. 1059 of 2007 arises out of O.A. No. 7076 of 1999, which was filed by the petitioner praying to call for the records relating to the order of the first respondent dated 07.07.1999, confirming the order of the second respondent dated 27.03.1998 and quash the same and grant all the consequential benefits.
3. WP No. 5957 of 2007 arises out of O.A. No. 1885 of 2002 which was filed by the petitioner before the Tribunal praying to call for the records relating to the impugned order of the second respondent in Na.Ka.No.N1/78611/01 dated 27.03.2002 and quash the same and grant all consequential benefits to the applicant.
4. Since the petitioner in all the three writ petitions are one and the same and the relief sought for by him is inter-linked with each other, by consent of both sides, the writ petitions are taken up together for final disposal.
5. The averments made by the petitoner in WP No. 1059 of 2007 (OA No. 7076 of 1999) are that the petitinoer was working as Extension Officer (Panchayat) in Keezhapavur Panchayat Union at Pavurchattiram, Tirunelveli District. On 28.12.1993, a charge memo was issued to the petitioner by the District Collector, Tirunelveli under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules containing two charges. On receipt of the charge memo, the petitioner has submitted his explanation denying the charges. The Additional Collector (Development), Tirunelveli was appointed as Enquiry Officer to conduct an enquiry into the charges. After elaborate enquiry, the enquiry officer submitted his report dated 16.03.1995 stating that both the charges are not proved against the petitioner. The report of the enquiry officer was communicated to the petitioner by the District Collector in his letter dated 31.07.1997 and called upon him to submit his further representation. Along with the said letter, the District Collector sent his remarks stating that he is not in agreement with the findings of the enquiry officer. The second respondent also given reasons for such disagreement in the said letter. On receipt of the same, the petitioner submitted his further representation dated 13.08.1997. Thereafter, the second respondent, who is the disciplinary authority, has passed final order dated 31.03.1998 imposing the punishment of stoppage of increment for 3 years with cumulative effect. Against the said order of the second respondent, the petitioner preferred an appeal before the first respondent on 07.05.1998. The first respondent also rejected the appeal filed by the petitioner by order dated 07.07.1999. Aggrieved by the said orders, the petitioner has filed the Original Application before the Tribunal on the ground that the impugned orders are not in accordance with Rule 23 of Tamil Nadu Civil Service (Discipline and Apeal) Rules. The petitioner also challenged the impugned orders on the ground that even though the disciplinary authority has given reasons for disagreeing with the report of the enquiry officer and called for further representation, after submission of his further representation, while passing the order of punishment, the disciplinary authority has not given any reasons at all. Similarly, the appellate authority has also given no reasons for confirming the order of the punishing authority and therefore, both the orders are vitiated. The petitioner also contended that the punishment imposed on him is disproportionate to the charges.
6. The respondents have filed a reply affidavit stating that the charge against the petitioner relates to acceptance of Rs.50/- as bribe for honouring a pay order payable to a contractor. An enquiry was conducted in which, witnesses, who have witnessed the petitioner receiving the bribe amount, were examined and cross-examined. Even though the enquiry officer held that the charges are not proved, the disciplinary authority, after giving sufficient reasons for his disagreement, called upon the petitioner to submit his further representation which was also submitted by the petitioner. Only thereafter, the disciplinary authority has imposed the punishment, which was also rightly confirmed by the appellate authority on merits. The respondents denied that the appellate authority confirmed the order passed by the disciplinary authority without reference to the enquiry officers remarks and that the order was passed only on merits after observing all the formalities. There are no merits in the writ petition and therefore, the writ petition has to be dismissed.
7. The averments in WP No. 5957 of 2007 (OA No. 1885 of 2002) are that when the petitioner was working as Rural Welfare Officer, Grade-I, in the year 1992, his junior namely Mr. Sankaranarayanan was promoted as Extension Officer and that the petitioner was not promoted on the ground of pendency of three charge memos against him. The charge memos were issued on 18.11.1990, 15.04.1991 and 18.05.1992 and the charges related to the period 11/90, 4/91 and 5/92. Since the petitioner was denied promotion as Extension Officer, he submitted a representation to the second respondent praying for promotion on par with his junior. Since he was not promoted even thereafter, he filed O.A. No. 4414 of 1993. In the said Application, the Tribunal, by order dated 16.07.1993 directed the respondents to ensure that final orders were passed in the pending proceedings without undue delay and to consider the claim of the petitioner on merits with reference to his work and conduct. Following the said order of the Tribunal, the District Collector, by his proceedings dated 10.09.1993 promoted the Petitioner as Extension Officer, Grade-I. In the said Order, it was categorically stated that the delay in the disposal of disciplinary proceedings was not due to the fault of the petitioner and therefore, the order of promotion was passed without prejudice to the pendency of the disciplinary proceedings against him. Subsequently, by proceedings dated 07.07.2000, the petitioner was promoted as Deputy Block Development Officer and further, by proceedings dated 07.08.2001, he was promoted as Block Development Officer. In the three disciplinary proceedings pending against the petitinoer, final order was passed in only one case and punishment of stoppage of increment for three years with cumulative effect was imposed and the same was also stayed by the Tribunal in O.A. No. 7076 of 1999. While so, the District Collector, by his proceedings dated 27.03.2002 cancelled the promotions given to the petitioner as Extension officer, Deputy Block Development Officer and Block Development Officer and reverted him to the post of Rural Welfare Officer, Grade-I as per the instructions of the Director of Rural Development, Chennai in his letter dated 07.03.2002. According to the petitioner, the copy of the said proceedings dated 07.03.2002 was not served on him. Under those circumstances, the petitioner has filed the Original Application No. 1885 of 2002 before the Tribunal challenging the order dated 27.03.2002 of the District Collector.
8. Though the respondents have filed reply affidavit, the learned Government Advocate appearing for the respondents brought to the notice of this Court that only as per the directions of the Tribunal, the petitioner was granted promotions on the ground of prolonged pendency of the departmental proceedings. In the order dated 20.09.1993, promoting the petitioner as Rural Welfare Officer, Grade-I, it was specifically stated that "The appointment of the above official is purely temporary and he is not entitled to any service rights (viz.,) seniority or further promotion etc., Further his service should be liable to be reverted at any time without any notice and without any reason being assigned. Further, the above promotion is subject to the finality of the matter before the judicial forum." Therefore, it was clearly stated that the petitioner would be reverted back at any point of time without any notice or without assigning any reason. Further, in the impugned order of reversion, it was categorically stated that the promotion was given to the petitinoer without taking necessary permission and advise from the Government and therefore the order is against the Rules. Further, pursuant to the directions of the first respondent, the second respondent had reverted the petitioner to the original post. In the order of reversion also, it was stated that even at that time, disciplinary proceedings under Rule 17 (b) are pending against the petitioner and therefore the promotion granted is totally in violation of the Rules and Regulations.
9. In the third writ petition namely WP No. 4071 of 2005, the petitioner would contend that he retired from the services as Block Development Officer. During the year 1992, when his junior was promoted as Extension Officer and similar promotion was not given to him on the ground of pendency of three charge memos, he had submitted a representation. Since no reply was forthcoming, he approached the Tribunal. Subsequently, he was promoted pursuant to the directions of the Tribunal. However, he was reverted back from his higher post and the same was also challenged before the Tribunal and he obtained an interim stay. By virtue of the interim stay, he continued as Block Development Officer and retired on 30.09.2004. However, in the order of retirement issued by the District Collector on 30.09.2004, it was stated that he was allowed to retire without prejudice to the pendency of the proceedings, which is the subject matter of O.A. No. 1885 of 2002. Even though he reitred from service, he was not given any retirement benefits. Therefore, he would contend that he made a representation dated 18.07.2004 requesting him to pay the retirement benefits, however, no order has been passed. Under those circumstances, WP No. 4071 of 2005 has been filed for a Writ of Mandamus.
10. The respondents have filed a counter stating that at the time of promotion of his junior Sankaranarayanan, three charges were pending against him, which are as follows:-
S.No. Charge Memo & Date Details of the charges
1. Collector, Tirunelveli Charges under Rule 17 (b) framed for the N1/6911/92 dated alleged complaint of receiving Rs.50/- as bribe 28.12.1993 from the President of Village Panchayat to admit the bill while he was working as Accountant in Kuruvikulam Panchayat Union
2. Collector, Tirunelveli 1) Charges under Rule 17 (b) of TNCS (D&A) N1/97990/90 Rules framed for the irregularities committed dated 19.11.1991 by him in IRDP Scheme while he was working as Assistant in Alangulam Panchayat Union
2) Criminal case also filed in this incident through the police department
3. Collector, Tirunelveli Charges under Rule 17 (a) of TNCS (D&A) N1/26309/87 dated Rules framed for the alleged irregularities 18.11.1990 committed in TRYSEM Scheme while he was working as Assistant in Alangulam Panchayat
11. As the petitioner was not promoted as Extension Officer, he filed O.A. No.4414 of 1993 before the Tribunal. On 16.07.1993, the Tribunal has passed an order stating that "normally, we would expect that disciplinary proceedings should be concluded within six months. In this case the charges relate to 11/90, 4/91 and 5/92 and final orders should have been pased much earlier. The respondents should ensure that injustice is not caused by such delay in pursuing the disciplinary action initiated." Pursuant to such direction of the Tribunal, promotion was given to the petitioner as Extension Officer, Deputy Block Development Officer and as Block Development Officer without prejudice to the pending disciplinary proceedings. In the meantime, when the first respondent reviewed the orders of promotion given to him, he had concluded that the promotion given to the petitioner is contrary to the Rules and therefore, the promotions given to him was cancelled and he was reverted to the post of Rural Welfare Officer, Grade-I. Thereafter, the petitioner went on medical leave from 28.03.2002 and filed O.A. No. 1885 of 2002 before the Tribunal and obtained interim stay on 05.04.2002. Pursuant to the interim stay granted by the Tribunal, the reversion order passed by the District Collector on 27.03.2002 was kept in abeyance as per the proceedings of the District Collector dated 11.04.2002. In the meantime, the petitioner attained the age of superannuation and he was also permitted to retire without prejudice to O.A. No. 1885 of 2002. Since he was permitted to retire without prejudice to the pending cases, he is entitled to receive all pensionary benefits except DCRG & Commutation. Therefore, the petitioner was paid Special PF Amount of Rs.21,456/- as per the proceedings of the District Collector dated 19.10.2004 and provisional pension of Rs.3,990/- from October 2004 as per the proceedings of the District Collector, Tirunelveli dated 05.11.2004. It was contended that promotion given to the petitioner was contrary to the Rules and therefore he was rightly reverted to the original post. Therefore, the respondents are right in withholding the terminal benefits payable to the petitioner pending the disciplinary proceedings against him.
12. Heard both sides. As far as the first case is concerned namely WP No. 1059 of 2007 (OA No. 7076 of 1999), the learned counsel for the petitioner vehemently contended that after charges were framed and after conducting an enquiry, the enquiry officer submitted his report dated 16.03.1995 stating that both the charges are not proved against the petitioner. On receipt of the same, the District Collector by his letter dated 31.07.1997 called upon the petitioner to submit his further representation since he is not in agreement with the findings of the enquiry officer. The disciplinary authority has also given reasons for such disagreement. Thereafter, on receipt of the further representation dated 13.08.1997, the disciplinary authority, in his final order has only narrated the details regarding the submission of the enquiry report, explanation of the petitioner etc., and straightaway, without assigning any reason, has imposed the punishment. The order of the disciplinary authority is per se illegal and it is bereft of any material particulars. Further, the appellate authority has also committed the same error. The appellate authority also, after narrating the factual details, summarily rejected the appeal by holding that no new grounds have been agitated by the petitioner. Therefore, according to the learned counsel for the petitioner, the orders passed by the disciplinary authority as well as the appellate authority are non-speaking orders, they are per se illegal and arbitrary and liable to be set aside.
13. In this context, it is necessary to look into the orders passed by the disciplinary authority as well as the appellate authority. In the order dated 27.03.1998 of the disciplinary authority, it was stated thus:-
"nkw;fz;l nky; tpsf;fj;jpy; jdf;F tha;bkhHp tprhuid (Personal hearing) njit vd Fwpg;gpl;oUe;jhh;/ mjd;go md;dhiu 10/021998 md;W tha;bkhHp tprhuidf;F M$uhf mwpt[Wj;jg;gl;lJ/ md;dhh; 10/02/1998 md;W khtl;l Ml;rpj;jiyth; Kd;dpiyapy; M$uhfp jhd; Vw;bfdnt tpsf;fk; rkh;g;gpj;J tpl;ljhft[k;. nky; tpsf;fk; Vjkpy;iy vd bjhptpj;J brd;W tpl;lhh;/ FutpFsk; Cuhl;rp xd;wpa Kd;dhs; fzf;fUk;. Jw;nghJ jw;fhypf gzp ePf;fj;jpypUf;Fk; br';nfhl;il Cuhl;rp xd;wpa eph;thf tphpthf;f mYtyh; (rj;Jzt[ jpl;lk;) Ukhd jpU/rp/ fUg;igah kPJ Rkj;jg;gl;l Fw;wr;rhl;Lfs;. mjw;F md;dhh; bfhLj;j Kfhe;jpuk;. Tprhuid mYtyhpd; mwpf;if. Fw;wr;rhl;Lf;Fs;shdth; tprhuizapd;nghJ bfhLj;j thf;FK:yk;. gpd;dh; tprhuid mwpf;if kw;Wk; khtl;l Ml;rpj;jiythpd; Fwpg;gpw;F Fw;wr;rhl;Lf;Fs;shdth; bfhLj;j nky; tpwf;fk;. Mfpait rk;ge;jg;gl;l Mtz';fSld; ftdkhft[k;. jd;dpr;irahft[k; ePjpa[[ld; vd;dhy; ghprPyid bra;ag;gl;lJ/ md;dhh; kPJ Rkj;jg;gl;l ,U Fw;wr;rhl;Lfs; fLikahdit/ mitfs; ,uz;Lk; epU:gzkhfpd;wd/ md;dhh; U:/50-? Ifa{l;L bgw;Wdhdh; vd;gJ epU:gpf;fg;gl;Ltpl;lgoahy;. mjw;F md;dhhpd; Cjpa cah;tpid jpuz;l gaDld; K:d;W Mz;L fhyj;jpw;F epWj;jp itj;J cj;jut[ gpwg;gpj;jhy; me;j jz;lid ePjpia epiy ehl;Ltjhf ,Uf;Fk; vd fUjp. md;dhhpd; Cjpa cah;tpid K:d;W Mz;L fhyj;jpw;F jpuz;l gaDld; epWj;jp itf;f cj;jutpLfpnwd;/
14. Further, in the order dated 07.07.1999 of the appellate authority, it was stated thus:-
"nkw;go cj;juit vjph;j;J jpU/rP/ Rg;igah. Cuf tsh;r;rp ,af;FeUf;F ghh;it 3?y; fhQqk; fojj;jpy; nkw;KiwaPL bra;Js;shh;/ nkYk; ,th;. JdJ 31/8/98?k; njjpa KiwaPl;L kDtpy; jdf;F. Cuf tsh;r;rp ,af;Feh; (my;yJ) Tljy; ,af;Feh; (bghJ) ,th;fspd; jd;dpiy tprhuid (Personal hearing) juntz;Lk; vd nfhhpapUe;jhh;/ mtuJ nfhhpf;ifapid Vw;W. Cuf tsh;r;rp ,kaf;ffj;jpy; ,tiu 22/10/98 md;W jd;dpiy tprhuidf;F M$uhFk;go cj;jutplg;gl;oUe;jJ/ md;W mth; Cuf tsh;r;rp ,af;Feh; Kd; M$uhfp jdJ thf;FK:yj;ij mspj;Js;shh;/ Cuf tsh;r;rp ,af;Feuhfpa ehd;. ftdkhft[k;. jd;dpr;irahft[k; jpU/ rP/ Rg;igah rkh;g;gpj;Js;s nky;KiwaPl;L kDtpid bjhlh;g[ila Mtz';fSld; Th;e;jha;t[ bra;jjpy;. ,tuhy; mspf;fg;gl;l nky;KiwaPl;L kD kw;Wk ;,tuhy; mspf;fg;gl;l thf;FK:yk; Mfpatw;wpy; g[jp[jhf Vw;ff;Toa. Nghjpa rhd;Wfs; vJt[k; mspf;fg;gltpy;iy/ vdnt ,th; kPJ khtl;l Ml;rpj;jiytuhy; tH';fg;gl;l ,Wjp Mizapid kW ghprPyid bra;af; fhuz';fs; VJkpy;iy vd fUJfpnwd;/
15. It is evident from the above extract that the disciplinary authority, after narrating the case in brief and the details regarding the issuance of show cause notice enclosing the enquiry officer's report, further representation made by the petitioner, without assigning any reason has held that the charges against the petitioner was proved and imposed the punishment. Similar is the case of the appellate authority, who has also, without application of mind and without referring to the case of the petitioner has simply rejected his appeal. In this context, it is necessary to refer to the decision of the Honourable Supreme Court reported in (Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney) (2009) 4 SCC 240 wherein the Honourable Supreme Court held that an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. The appellate order should disclose application of mind. Whether there was application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. In Para No.5 and 8, it was held as follows:-
5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority.
8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.
16. The learned counsel for the petitioner also brought to the notice of this Court a decision of this Court rendered by a learned single Judge and reported in (Nawabkhan vs. Superintendent of Police, Chengai MGR East District, Chennai and another) 2008 7 MLJ 1275. In that judgment, it was held that neither the disciplinary authority nor the appellate authority have given any cogent reasons for coming to the conclusion that the charges against the petitioner had been proved and therefore the disciplinary proceedings are vitiated.
17. In this case, neither the disciplinary authority nor the disciplinary authority have given any reasons for arriving at a conclusion to impose the punishment against the petitioner which discloses their non-application of mind. Further, it is necessary to refer to Rule 23 (1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, which is extracted hereunder:-
"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 esablished:
(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 whch imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case:
18. It is seen from Rule 23 that in the event of an appeal against an order, imposing any penalty, the appellate authority should consider whether the facts on which the order was based have been esablished; whether the facts established afford sufficient ground for taking action; and whether the penalty is excessive, adequate or inadequate and then pass orders. In this case, the appelate authority has passed a cryptic order. In fact, the appellate authority gave personal hearing and after recording the same, straightaway confirmed the order of the disciplinary authority without any discussion or assigning any reasons holding that on examination of the documents and evidences, no new ground has been made or any evidence has been let in by the petitioner and therefore the order of the disciplinary authority was confirmed. A reading of the order of the appellate authority, extracted above, would make it clear that Rule 23 has not been complied with. There is no discussion whether the facts on which the order was based have been esablished; whether the facts established afford sufficient ground for taking action; and whether the penalty is proportionate to the charges. Therefore, even for confirming the order of the disciplinary authority, the appellate authority ought to have given some reasons. As per the decision of the Honourable Supreme Court referred to above, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. Further, whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. In this case, both the disciplinary authority as well as the original authority have passed the orders without assuming any reason which discloses that there is no application of mind. The orders impugned are not in consonance with the decision of the Honourable Supreme Court referred to above. Therefore, on this technical ground, the orders which are impugned in WP No. 1059 of 2007 are liable to be set aside.
19. Yet another factor to be considered in this case is the petitioner retired way back in the year 2004. Therefore, when the orders of the respondents are set aside on a technical ground namely non-speaking orders, it has to be considered whether the matter has to be remitted back to the respondents for completion of the enquiry in respect of the other two disciplinary proceedings. In this context, in identical case, this Court in the judgment rendered on 28.01.2009 in WP No. 29705 of 2006 held in para-6 as follows:-
"6. Normally, when an order is set aside on a technical ground like this, the proper course would be to remit the case back to the authorities for fresh disposal. But I do not propose to adopt the said course in the instant case for the reason that the O.A. Was filed in the year 1997 and the same is disposed of only today that is after about 12 years. Going by the triviality of the charge and other circumstances, at this length of time, if the matter is remitted back to the respondent for passing fresh order, it will surely cause prejudice to the petitioner. The Honourable Supreme Court has held in number of judgments in categorical terms that disciplinary proceedings should not be delayed unnecessarily. Similarly, on the ground of inordinate delay, the disciplinary proceedings have been quashed by the Hon'ble Supreme Court and by this Court. If the proceedings in the instant case are remitted back to the respondent for disposal, at this length of time, surely, it would run counter to the principles laid down by the Hon'ble Supreme Court stated above."
20. In this case, inasmuch as the charges framed against the petitioner relates to the period between 1990 and 1993, the petitioner also retired from service way back in the year 2004 and more than 5 years have now lapsed, there is no point in remanding the matter back to the respondent for fresh consideration.
21. In so far as the other two writ petitions are concerned, it is clear that the petitioner was facing departmental enquiry on three different charges, out of which only in one charge, final orders have been passed, which is the subject matter of WP No. 1059 of 2007. In fact, in the earlier occasion, the petitoner has approached the Tribunal and the Tribunal has issued a direction on 16.07.1993 to the effect that "normally, we would expect that disciplinary proceedings should be concluded within six months. In this case the charges relate to 11/90, 4/91 and 5/92 and final orders should have been pased much earlier. The respondents should ensure that injustice is not caused by such delay in pursuing the disciplinary action initiated." Only after the direction of the Tribunal, the petitioner was promoted as Deputy Block Development Officer and as Block Development Officer. But it was made clear that such a promotion is subject to the pending disciplinary proceedings and that the petitioner cannot make any claim for seniority. It was also made clear that he would be reverted back at any time without any notice. Subsequently, when the promotion of the petitioner was reviewed by the Director of Rural Development, Chennai, it was found that promotion was given to the petitioner without consulting or getting necessary concurrence from the Government. Therefore, a direction was issued to the District Collector to cancel the promotion granted to the petitioner and accordingly, the petitioner was reverted back to his original post. Challenging the same, the petitioner has approached the Tribunal and obtained interim stay. By virtue of the interim stay, the petitioner retired as Block Development Officer and retired on 30.09.2004. Subsequently, the petitioner has filed WP No. 4071 of 2005 before this Court for a Mandamus to direct the respondents to grant all the retirement benefits to him from the date of his retirement namely 30.09.2004. Therefore, these two writ petitions namely WP No. 4071 of 2005 and WP No. 5957 of 2007 (O.A. No. 1885 of 2002) are interlinked.
22. From the counter filed in WP No. 4071 of 2005, it is seen that in so far as the three charges issued to the petitioner, in all the three charges, punishments were imposed as follows:-
S.No. Charge Memo No. Details of final orders & Date
1. Collector, Tirunelveli Final order passed in Collector, Tirunelveli N1/6911/92 dated N1/34334/96 dt. 31.3.98 by inflicting stoppage 28.12.1993 of increment for 3 years with cumulative effect.
The petitoner has filed O.A. No. 7076/99 in TAT against the final order and obtained stay.
The stay was not vacated till date.
2. Collector, Tirunelveli 1) Final order passed in GO Ms. No.776/RD 17(b) N1/97990/90 E1 Department dated 03.12.2002 by dated 19.11.1991 inflicting stoppage of increment for one year without cumulative effect.
2) He was acquitted in the criminal case by the Sessions Judge, Tirunelveli
3. Collector, Tirunelveli Final order passed in Collector, Tirunelveli N1/26309/87 dated Proc.N5/108116/2003 dated 29.9.2004 by 18.11.1990 inflicting the recovery of Rs.1,860/- in one instalment from his salary.
23. The punishment of stoppage of increment for a period of three years imposed on 31.03.1998 on the petitioner is the subject matter of WP No. 1059 of 2007 and the said punishment is being set aside by this Court as mentioned in the above paragraphs. In so far as the other two punishments of stoppage of increment for one year without cumulative effect and recovery of Rs.1,860/- in one instalment are concerned, the petitioner has not chosen to challenge the same and therefore they reached a finality. Therefore, it is clear that the petitioner was subjected to departmental proceedings for his misconduct and in view of the pendency of the disciplinary proceedings, the petitioner was not given any promotion. Subsequently, taking note of the long delay in completion of the proceedings, the Tribunal has directed the respondents to dispose of the disciplinary proceedings at an early date and to consider the claim of the petitioner for promotion. Therefore, following the order of the Tribunal dated 16.07.1993 in O.A. No. 4414 of 1993 the petitioner was given promotion as Extension Officer, Grade-I on 10.09.1993, further promoted as Deputy Block Development Officer on 07.07.2000 and further promoted as Block Development Officer on 07.08.2001. While so, the District Collector, by his proceedings dated 27.03.2002 cancelled the promotions given to the petitioner as Extension officer Grade-I, Deputy Block Development Officer and Block Development Officer as per the instructions of the Director of Rural Development in his letter dated 07.03.2002. Challenging the said order of cancellation, the petitioner has filed O.A. No. 1885 of 2002 before the Tribunal and on abolition of the Tribunal, the Original Application stood transferred to this Court and re-numbered as WP No. 5957 of 2007. Pending O.A. No. 1885 of 2002, the Tribunal granted interim stay and by virtue of the interim order, the petitioner remained in service as Block Development Officer and retired on 30.09.2004.
24. It is pertinent to point out here that promotions were given to the petitioner purely on temporary basis. In the order of promotion, it was categorically stated that "The appointment of the above official is purely temporary and he is not entitled to any service rights (viz.,) seniority or further promotion etc., Further his service should be liable to be reverted at any time without any notice and without any reason being assigned. Further, the above promotion is subject to the finality of the matter before the judicial forum."
25. It is now evident that all the three departmental proceedings ultimately ended in punishment and the petitioner has not chosen to challenge two of the three punishments imposed against him. At the relevant point of time, when admittedly departmental proceedings were pending against him, merely because he was given promotion temporarily that too as per the direction of the Tribunal in view of the delay in completion of the disciplinary proceedings, it will not enure to the benefit of the petitioner. In the impugned order in WP No. 5957 of 2007, it was stated that promotion was given pending disciplinary proceedings and without obtaining necessary permission of the Government. Admittedly, before giving promotion to the petitioner, the permission of the Government was not obtained and it was only given pursuant to the directions of the Tribunal. Therefore, the respondents thought it fit to cancel the promotion given to the petitioner and reverted him to the original post. The order of reversion passed by the respondent is attacked only on the ground that the petitioner has been allowed to enjoy the fruits pending the decision of the Court and now he has also retired, hence, the reversion order is unsustainable in law. First of all, an employee, who was enjoying the fruits only pursuant to the interim order of the Court, cannot claim as a matter of right that such order would enure to his benefit because such interim orders are always subject to final result of the case. In this case, in the promotion order given to the petitioner, it was clearly stated that his services are liable to be reversed at any time without any reason or without any notice. Furthermore, the promotion itself is subject to the finality of the matter before the judicial forum. As this Court do not find any illegality in the order of reversion, the mere fact that the petitioner continued as Block Development Officer till his retirement, by virtue of the interim order passed by the Court, will not enure to his benefit especially when the petitioner has not challenged the other two punishments imposed on him. The petitioner, having allowed the punishments to become final, cannot at this stage permitted to say that the reversion order is illegal. Furthermore, the petitioner is unable to establish any ground to assail the order of reversion. The promotion was admittedly given to the petitioner during the relevant time when there was departmental proceedings pending against him and subsequently the proceedings ended in imposition of punishment which has not been challenged by the petitioner.
26. In (L. Rajaiah vs. Inspector General of Registration and Stamps, Hyderabad and others) AIR 1996 Supreme Court 2199, it was held that an employee undergoing punishment of stoppage of increment is not entitled to be considered for promotion during that period of punishment. In Para No.4, it was held as follows:-
4. A reading thereof clearly indicates that notwithstanding anything contained in special ad hoc rules, all promotions to non-selection category or grade shall, subject to the provisions of Rule 16, may be made in accordance with seniority-cum-fitness unless promotion of a member has been withheld as a penalty. Though due to stoppage of increment, he is not ineligible for consideration for promotion, he is otherwise entitled to be considered in accordance with the rules, namely, seniority-cum-fitness. However, when seniority-cum-fitness is the criteria, the imposition of the penalties for one year on 1-3-1988 and in another enquiry, stoppage of increment for five years from 1-3-1989, i.e., till 28-2-1994, disentitled him to be considered; so he did not regain fitness for consideration for promotion as he was under disability undergoing punishment. Consequently, when the promotion to the post of Senior Assistant is on the basis of merit and ability under special rules, fitness is one of the considerations for the purpose. Since he was undergoing punishment during the relevant period, he is not eligible for consideration for promotion. Therefore, his juniors have stolen march over the appellant as Senior Assistants. He cannot thereby have any grievance. However, he is entitled to be considered for promotion according to rules after 1-3-1994.
27. In a decision of the three Judges of Honourable Supreme Court reported in (Union of India and others vs. K. Krishnan) AIR 1992 Supreme Court 1898 it was held that denial of promotion during the currency of penalty in disciplinary proceedings against an employee wouold not be said tobe arbitrary and violative of Article 14 and 16 of the Constitution of India or it does not subject the employee to double jeopardy. In Para No.4, it was held as follows:-
4. We have considered the matter closely and in our opinion the view taken by the Tribunal both in the impugned judgment and in the earlier decisions holding that as a result of the provisions of Rule 157 forbidding the promotion of a State employee during the currency of the penalty results in a second punishment, is not correct. There is only one punishment visiting the respondent as a result of the conclusion reached in the disciplinary proceeding leading to the withholding of increment, and the denial of promotion during the currency of the penalty is merely a consequential result thereof. The view that a government servant for the reason that he is suffering a penalty or a disciplinary proceeding cannot at the same time be promoted to a higher cadre is a logical one and no exception can be taken to Rule 157. It is not correct to assume that Rule 157 by including the aforementioned provision is subjecting the government servant concerned to double jeopardy. We do not find any merit in the argument that there is no justification or rationale behind this policy; nor do we see any reason to condemn it as unjustified, arbitrary and violative of Articles 14 and 16 of the Constitution of India. On the other hand, to punish a servant and at the same time to promote him during the currency of the punishment may justifiably be termed as self-contradictory. The impugned judgment is, therefore, set aside.
28. In view of this judgment, the petitioner is not entitled to seek to quash the reversion order. Furthermore, now the petitioner has retired as Block Development Officer by virtue of the interim order passed by the Court. He cannot be reverted back to discharge his duties as he had already retired. If at all, the monetary benefits, by virtue of his reversion alone has to be deducted from his retirement benefits. In the counter affidavit, it was categorically stated by the respondents that since the petitioner was permitted to retire without prejudice to the pending cases, he is entitled to receive all pensionary benefits except DCRG & Commutation. Therefore, the petitioner was paid Special PF Amount of Rs.21,456/- as per the proceedings of the District Collector dated 19.10.2004 and provisional pension of Rs.3,990/- from October 2004 as per the proceedings of the District Collector, Tirunelveli dated 05.11.2004.
29. Therefore, in view of the dismissal of the writ petition challenging the order of reversion, the difference in pay payable to the petitioner alone has to be deducted. As the order of reversion is held to be correct, no Mandamus can be issued to the respondents to disburse the retirement benefits, especially when the petitioner was allowed to retire subject to the result of the writ petition only.
29. In the result, WP No. 1059 of 2007 is allowed as prayed for. W.P. No. 4071 of 2005 and 5957 of 2007 are dismissed. No costs.
07-04-2010 rsh Index : Yes / No Internet : Yes / No To
1. The Director of Rural Development Panagal Buildings, Saidapet Chennai 600 015
2. The Collector Tirunelveli Tirunelveli District B. RAJENDRAN, J rsh Pre-delivery Common Order in W.P. No. 4071 of 2005 and WP Nos. 1059 & 5957/2007 07-04-2010