Madras High Court
V.Ramasamy vs The Secretary on 19 September, 2014
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2014
CORAM
THE HONOURABLE MR. JUSTICE S.MANIKUMAR
W.P.No.8699 of 2006
(O.A.No.1006 of 2003)
V.Ramasamy ... Petitioner
Vs
1. The Secretary,
Government of Tamil Nadu,
Municipal Administration and
Water Supply Department,
Fort St. George, Chennai-9.
2. The Director of Town Panchayat,
Kuralagam, Chennai-108. ... Respondents
This petition came to be numbered by transfer of O.A.No.1006 of 2003 on the file of the Tamil Nadu Administrative Tribunal, praying for the issuance of Writ of Certiorarified Mandamus, to call for the records of the 1st respondent, in its proceedings G.O.(T/P)No.349, dated 19.05.2002, confirming the order passed by the 2nd respondent in ROC.No.2529/92/B1 and the consequential order of the 1st respondent in G.O.No.40, dated 06.02.2009, quash the same and consequently, direct the respondent to grant the petitioner with all consequential benefits.
(Prayer amended as per order, dated 17.09.2009, in WPMP.No.641/09)
For Petitioners : Mr.V.Vijay Sankar
For Respondents : Additional Government Pleader
O R D E R
Initially, the petitioner has challenged the orders of the disciplinary authority, dated 31.08.1997, dismissing him from service and the appellate authority, dated 19.05.2002, confirming the order passed by the disciplinary authority and consequently, prayed for a direction to the respondents to grant him, all the consequential benefits. Thereafter, the review petition, dated 18.05.2003, has been dismissed on 06.02.2009, in G.O.Ms.No.40, Municipal Administration and water Supply Department and the prayer to set aside the same has been allowed on 17.09.2009, in W.P.M.P.No.641/09. Accordingly, all the three orders have been challenged.
2. Facts leading to the writ petition are as follows:
The petitioner, Executive Officer, has rendered 24 years of service in various Town Panchayats. He has functioned as Executive Officer of Kangeyam Town Panchayat for nearly two years, between 11.07.1988 and 30.08.1990. During his tenure, he has discharged his duties, with utmost satisfaction of the general public, as well as to the Town Panchayat. As he was straight forward officer, he had faced threats and at one stage, a letter, dated 07.09.1990, was sent by the then District Collector, Periyar District, to the Superintendent of Police, to give police protection, to the petitioner.
3. After nearly four years, from the date of handing over charges of Kangeyam Town Panchayat, i.e., on 30.08.1990, the petitioner received a charge memo, dated 28.08.1994, containing 6 charges, for the incidents alleged to have taken place during the period between 11.07.1988 and 30.08.1990, when the petitioner was working as the Executive Officer in Kangeyam Town Panchayat. The Charges are as follows:
(1) During the year 1989-90, though the accused officer obtained tenders from N.K.Muthuswamy Gounder and Ramasamy Gounder at the rate of Rs.20/- per lorry load of water, paid only Rs.15/- and had taken Rs.5/- per load, misusing his position and thereby, he has obtained Rs.17,630/- from the contractors and thereby, did not keep up the integrity in Government service.
(2) The accused officer while working as Executive Officer, Kangeyam Town Panchayat had demanded and received bribe from 5 persons mentioned therein for giving drinking water connections to their houses.
(3) The accused officer has unauthorisedly permitted two individuals viz., Latha and Kaladevi to deal with official file and to use typewritter machine, contrary to government servant conduct rules.
(4) The accused officer suspended the sweeper Karuppan for having consumed liquor on duty hours and the said Karuppan was reinstated by the accused officer, without initiating any departmental action, showing favouritism and thereby, brought disgrace to the office of the Executive Office.
(5) The accused officer on 19.5.89 demanded Rs.500/- and received Rs.200/- for approval of the house plan for a constructed house from one K.Palanisamy, thereby has not kept up integrity and devotion to the duty as a Government Servant (6) To the supply of drinking water to the public of Kangeyam, it was consented to pay Rs.20/- per per lorry water to the owner of the well. But the accused officer has requested approval of Rs.25/- and has taken from Panchayat General Fund and thereby has not maintained absolute integrity and devotion to duty and has not discharged his duty as a public servant."
4. The petitioner has submitted a detailed reply, denying the above charges. The enquiry officer, without properly appreciating the facts, evidence and the explanation of the petitioner, submitted a report, holding charges 1 to 5 as proved, and Charge No.6, as not proved. The said report was served on the petitioner on 09.04.1997. Since the petitioner was about to retire on 30.06.1997, he was placed under suspension by Government Order, dated 27.06.1997 and by another Government Order, dated 30.06.1997, he was not allowed to retire from service.
5. Thereafter, the petitioner has given a detailed further explanation to the findings of the Enquiry Officer's report. However, the disciplinary authority, without independently applying his mind to the facts and circumstances of the case, and the contentions raised, has simply accepted the report of the Inquiry Officer and imposed a major punishment of dismissal from service on 31.08.1997. Aggrieved by the same, the petitioner filed an appeal to the 1st respondent on 01.10.1997 and also challenged the said order of dismissal in the Tamil Nadu Administrative Tribunal, Madras, in O.A.No.8403 of 1997. However, the said O.A., was withdrawn, with liberty to challenge the order to be passed in the appeal. Thereafter, the 1st respondent, by an order, dated 19.05.2002, passed a final order in the appeal, upholding the order of dismissal passed by the Disciplinary Authority. In the review petition, the 1st respondent has confirmed the order of dismissal, vide order, dated 06.02.2009. Being aggrieved by the orders of the respondents, the present writ petition has been filed.
6. It is the contention of the petitioner that the order of dismissal passed by the 2nd respondent and confirmed by the 1st respondent are totally bad, as both the authorities have not applied their mind to the facts and circumstances of the case, and that they have simply relied on the report of the enquiry officer, without independently considering the nature of charges, evidence adduced and the contentions made. He further submitted that both the authorities have failed to consider that the then collector of Dharmapuri District, has even a letter, dated 07.09.1990 to the superintendent of police, against persons who had threatened the petitioner, when he had handed over the charge, on his transfer out of Kanageyam Town Panchayat.
7. The petitioner has further contended that both the authorities have failed to take note of the fact that he was instrumental in disconnecting water supplies, given to certain persons, who had political background and having grudge over the same and those persons alone have given evidence against him, in the departmental enquiry and that the whole inquiry proceedings have been concluded, with a sole objective to punish him.
8. As regards Charge No.1, the petitioner has submitted that PW.3, Muthuswamy Gounder and PW.13, Ramasamy Gounder are close relatives and they also belonged to the same political party. He further submitted that as PW.3, was selling water to other private persons and there was some difficulty in supplying water to people of Kanegyam Town Panchayat, the petitioner has sent a report in File No.102/89-pages 673 to 692) to the District Collector, seeking permission to get water from some other source, which lead to a substantial loss to PW.3. He also submitted that in response to the letter of the District Collector, dated 07.09.1990, Pws.3 and 13, have not chosen to lodge any counter complaint, refuting the contents stated therein.
9. The petitioner has further submitted that it was the Town Panchayat, which paid the amount, by way of cheques and as Executive Officer, the petitioner was aware of the procedure and therefore, the evidence of Pws.3 and 13, that after withdrawing the entire amount; that they would hand over the same to the petitioner; who in turn, would take his share of Rs.5/- per load, and return the balance to them, is highly imaginary. He further submitted that when PW.3, himself has admitted that he does not know even his bank account, and in such circumstances, his evidence cannot be given credence. Therefore, the petitioner has submitted that both the disciplinary and appellate authorities have erred in arriving at the conclusion that the charge as proved.
10. As regards charge No.2, the petitioner has further submitted that out of five witnesses, viz., Pws.1, 2, 5, 8 and 9, PW.2 turned hostile and others, who have given evidence, were personally affected by his action. He further submitted that PW.1, who was not able to obtain a place for his shop in the new bus stand and hence, had motive against him. He also submitted that initiation of legal proceedings, against PW1's father, Somalai Gounder, for recovery of the rental arrears to the tune of Rs.58,000/-, is also another cause, for deposing against him.
11. The petitioner has further submitted that the authorities have failed to take note of the fact that during the chief examination, PW.1 himself has stated that he had preferred many complaints against the petitioner and that even the P.A. to the collector had conducted an enquiry into the same. He therefore submitted that if there was any truth in the complaint, stated to have been sent, action could have been taken at that time itself.
12. The petitioner has contended that both PW.9 and PW.1 hail from the same place and they are close friends. Even as per PW.9's statement, he did not say about the incident to anybody and it is not known, as to how the Vigilance Department, enquired him. Even assuming that it was a general enquiry, they have not enquired other persons, who were granted water connections. He further contended that vigilance enquiry has been conducted with Pws.1, 3, 5 and 8 and other persons, who are either friends or related and therefore, the said fact would itself reveal that the entire proceedings have been initiated and concluded only with the sole intention of punishing him. The enquiry conducted is biased.
13. The petitioner has further contended that the authorities have failed to note that both Pws.5 and 8, with their political influence, were tapping water from the main line and that they were getting water throughout, without any difficulty, even during water crisis, whereas, others, living in the area were getting water from the distribution line on alternate day basis, and that too, only for limited hours. On receipt of complaints from local public, a report was sent by the petitioner to the District Collector, to the then elected president and pursuant to the same, water connection from the main line to the abovesaid persons, was disconnected and that they were given water, through distribution line.
14. The petitioner has further contended that even PW5, in his evidence, has admitted that out of 1000 houses, only few houses, including his house, were getting uninterrupted supply of water from the main line. When the petitioner attempted to disconnect the same, with the assistance of local M.L.A., he has moved the court and obtained a stay. However, due to the sincere efforts, stay was vacated and that PW5 was given water, from the main distribution line, like others. According to the petitioner, there is absolutely no evidence to show that the petitioner had demanded or received any bribe and more particularly, from persons against whom, he had earlier initiated proceedings and who had developed enmity against him.
15. Insofar as Charge No.III is concerned, regarding unauthorised engagement of two staff for doing official work, the petitioner has contended that the respondents have failed to take note of the fact that it was only in accordance with the orders passed by the District Collector, Periyar District, he had engaged part time section writers to assist him, in numbering the houses in Kanageyam Town Panchayat, with proper serial numbers. The said work continued even after the petitioner's transfer, from out of Kanageyam Town Panchayat. Even as per the statement of PW.11, their appointment was made as per the Collector's order, to complete the work in time.
16. As regards Charge No.IV, the petitioner has submitted that PW.11 was appointed as an enquiry officer by the petitioner to enquire into Karuppan's matter (Menial Staff) and even according to PW11, the said Karuppan was placed under suspension and that he had accepted the guilt, even prior to the commencement of the enquiry by PW.11 and that the said Karuppan had filed a mercy petition before the President of Kanegeyam Town Panchayat, for reinstatement.
17. The petitioner has further contended that as per the statement of PW.11, the said Karuppan, was working for the past 10 years and that he was a sincere and hard worker, and that he has also preferred an appeal to the President of the Town Panchayat. Taking into consideration the above said facts, and also of the fact that it was the first time, the said Karuppan was involved in such an incident, the President had adviced the petitioner for reinstatment. According to the petitioner, examination and cross examination of Pws.11, 12 and 14 would go to prove that he had taken all necessary steps, including getting a legal opinion before reinstating said Karuppan. He therefore submitted that there is no evidence to show that the said Karuppan was reinstated, for any illegal consideration.
18. With regard to Charge No.V, the petitioner has contended that the allegation that he demanded Rs.500/- for approval of a plan, for a construction of a house, is false. PW.6 in his statement, has deposed that the amount was paid, while submitting a plan for his proposed construction. However, the evidence of PW.11 would go to show that even prior to 24.6.87, PW.6's father, Kolandaisamy Gounder had paid the property tax for his house, which goes contrary to the statement of PW.6. It only shows that for the constructed house, tax has already been levied.
19. The petitioner has submitted that during his tenure as Executive Officer, he has sanctioned water connections to many persons, as could be seen from the evidence of PW.15, his successor and as stated supra, the enquiry centred around only those people, who were either relative or friends of Pws.1, 5 and 8 and it has been done, only with a mala fide intention to punish him.
20. He further submitted that the disciplinary authority has merely relied on the advice, rendered by the Tamilnadu Public Service Commission and when the said report of the commission was adverse to him, it is the bounden duty of the authority to have supplied a copy of the same, before passing the impugned order of dismissal and further, the respondents ought to have called for an explanation. He therefore submitted that non-furnishing of such a material document, would vitiate the entire enquiry proceedings. For the abovesaid reasons, and the submissions made, he prayed to set aside the impugned orders.
21. The Director of Town Panchayat, Kuralagam, Chennai, 2nd respondent, in his counter affidavit, has submitted that the petitioner, while working as Executive Officer, has committed serious irregularities in the transportation of drinking water through lorries to the public, during the year 1989-90. He had collected a sum of Rs.20/- per lorry, whereas, he had paid only Rs.15/- per trip to the tenderers, viz., Ramasamy Gounder and N.K.Muthusamy. Thus he has misappropriated a sum of Rs.17,630/-. He had demanded a sum of Rs.1,850/- and accepted a sum of Rs.1,250/- as bribe, from A.S.Palanisamy, S.Viswanathan, K.N.GopaI, K.Chandrasekaran and A.Palanisamy, for providing water supply connections to their houses. He has again demanded a sum of Rs.500/- from K.Palanisamy on 19.5.89 and accepted a sum of Rs.200/- as bribe, for sanctioning building licence to a constructed house. Thus, he had abused his powers in the capacity of an Executive Officer of Kangeyam Town Panchayat and misused his official capacity. He has unauthorisedly permitted two individuals, viz., Latha and Kaladevi, to deal with official works. One Thiru.Karuppan, who was suspended for consuming Alcohol, during working hours and created an ugly scene, was reinstated by the petitioner, without following the procedure.
22. The 2nd respondent has further submitted that for the abovesaid irregularities, the Government in their order, in G.O.2(D)No.6, RD(E6) Department, dated 9.1.92, directed to initiate departmental action against the petitioner and therefore, charges were framed under rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules, vide Office Charge Memo in ROC.No.2529/92/B1, dated 23.08.1994, for which, the petitioner has submitted his written statement of defence on 03.05.1995. The Assistant Director of Town Panchayats, Erode Zone was appointed as Enquiry Officer, vide office Pro.Roc.No.2529/92/B1, dated 31.1.97. On completion of the enquiry, the Enquiry Officer's report was communicated to the petitioner for submitting his further explanation on the enquiry report. Accordingly, he submitted his further remarks on 4.6.97. In the meantime, the petitioner was placed under suspension, vide G.O.(D)No.302/Municipal Administration and water Supply (MEIV(2)/Department, dated 27.6.97 and was not allowed to retire from service on 30.6.97, as per G.O.(D)No.305/Municipal Administration and Water Supply (MEIV(2)/Department, dated 30.6.97, due to pending charges.
23. Considering the gravity of offence, the disciplinary authority, ie., the Director of Town Panchayats,, has awarded a punishment of 'Dismissal from service', to the petitioner, vide office Proceedings in Roc.No.2529/92/B1, dated 31.8.97. The petitioner has preferred an appeal against the order of punishment on 1.10.97 and simultaneously, filed O.A.No.8403 of 97, before the Tamil Nadu Administrative Tribunal, Madras, and the said O.A. Was subsequently, withdrawn on 24.9.98. In the appeal, the Government, by G.O.No.349, Municipal Administration and Water Supply Department TPI(2), dated 19.5.2002, has confirmed the dismissal order of Director of Town Panchayats. The dismissal order was also confirmed in review.
24. It is the contention of the 2nd respondent that the petitioner, in his petition, dated 14.09.94, requested one month time for submission of his explanation, due to his ill health. After submission of his explanation along with questionare, in his letter, dated 3.5.95, the enquiry officer has permitted the petitioner to peruse the required records on 14.7.95. The Enquiry officer in his memo, dated 18.7.95, has stated that the petitioner had perused records, relating to Charge No.1 and that he was permitted to verify other records on 25.7.95. As requested in his letter, dated 14.7.95, copies of statements of witnesses were given for cross-examination of witnesses.
25. The 2nd respondent has further contended that the petitioner was permitted to engage a lawyer and that he attended the enquiry on 05.07.1995 and 05.10.1995, but was absent on 20.01.1996. The Enquiry Officer, in his D.O.Rc.No.19199/95/V2, dated 31.01.1996, wrote a detailed D.O. Letter to the Director of Town Panchayats, Madras, stating that the petitioner has unnecessarily delayed the enquiry. The Enquiry Officer had furnished complete details about the periodical action, taken on the disciplinary proceedings against the petitioner from 26.08.1994 to 31.01.1996 and for non-cooperation of the petitioner in the enquiry. Again, the Enquiry Officer in his letter, dated 31.01.1996, reported that the petitioner did not appear for the enquiry on 25.01.1996 without any information. Again, the enquiry was postponed to 28.02.1996 by the Enquiry Officer. By letter, dated 29.02.1996, the petitioner has stated that the enquiry would be conducted again on 21.03.1996 and 22.03.1996. Thereafter, the Enquiry Officer conducted the enquiry on the said dates and also permitted the petitioner to engage an advocate for the enquiry and defence statements were also recorded. After holding charges 1 to 5, as proved, copy of the enquiry report was sent to the petitioner to enable him to offer his further explanation and the petitioner submitted his explanation on 4.6.97. The respondent has submitted that there is no procedural irregularity in the enquiry. Charges have been held proved and accordingly, punishment of dismissal from service was imposed. According to him, there is no illegality or irregularity and hence, prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
26. Insofar as Charge No.1 is concerned, Pws.3 and 13 are the witnesses examined by the Department. As per the version of PW.3, N.K.Muthusamy, he has supplied water to Kangeyam Town Panchayat, at Rs.20/- per lorry. The petitioner would issue cheque for the entire lorry loads of water and after transacting the same from the bank, the entire amount would be given back to the petitioner and after taking Rs.5/- per load, the balance would be paid. According to him, State Bank cheques were given for payment. He did not have any account in the Bank. However, he has stated that Kangeyam Town Panchayat would give Account Payee cheques. He had not maintained any records for supply of water. He does not remember, as to whether, any statement has been given to the Police. Except the above oral evidence, there are no records. He has not reported anything to the President or Vice-President of the abovesaid Panchayat. Portion of his evidence, is extracted hereunder:
mjd;goa ehd; rg;is bra;j jz;zPUf;F xU yhhp nyhLf;F U:/20-= tPjk; gpy; nghlg;gl;L vdf;F fpilj;j brf;Ffis t';fpapy; ehd; khw;wp. me;j bjhifia ehd; F/rh/m/ tplk; bfhLj;J xU yhhp nyhLf;F U:/15/-= tPjk; F/rh/m/ tplkpUe;J bgw;Wf;bfhz;nld;/ In the cross-examination, PW.3, N.K.Muthusamy, has further deposed that, ehd; t';fpapy; vd; bgahpy; fzf;F vJt[k; itj;jpUf;ftpy;iy/ vdf;F mf;bfsd;l; ngap brf; vd; bgahpy; fh';fak; ngU:uhl;rpapy; jUthh;fs;/ ehd; jz;zPh; tpw;wjw;F ve;j tpjkhd fzf;Fk; itj;Jf;bfhs;stpy;iy///// nghyP!; mjpfhhpfs; nkw;fz;Ls;s jfth;fis tprhuizapy; brhd;ndd; vd;gJ "hgfkpy;iy/ fh';fak; ngU:uhl;rpapypUe;J tuhj yhhpfSf;Fk; ehd; jz;zPh; tpw;wjhf fzf;fpw;F bgw;w fhnrhyiy bjhiffs; midj;Jk; F/rh/m/tplk; KhtJkhf bfhLj;Jtpl;ljw;F vd;tha;bkhHp rhl;rpaj;ij jtpu ntW hpf;fhh;Lfnsh fzf;Ffnsh ,y;iy////// F/rh/m/ vd;dplk; gzk; bgw;w tpguj;ij ehd; mg;nghjpUe;j fh';fak; ngU:uhl;rp jiyth; kw;Wk; cgjiyth; Mfpnahh;fsplk; g[fhh; kD Vjk; bfhLf;ftpy;iy/
27. PW.13, Ramasamy Gounder, in his evidence, has stated that the he has supplied water for two months. State Bank cheques were issued every week. According to this witness, he has maintained the accounts only orally. Relevant portion of his evidence, is extracted hereunder:
ehd; FoePh; rg;ig bra;jjw;fhf fzf;F VJk; itj;Jf;bfhs;stpy;iy/ yhhp oiuth;fs; brhd;d fzf;fpd; mog;gilapy;jhd F/rh/m/ brf;nghl;Lf;bfhLj;jhh;/
28. It is well known that whenever works are undertaken by public authorities, Account Payee cheques alone are issued. That is even admitted by both Pws.3 and 13. Both of them have given evidence to the effect that they have not maintained any records. When account payee cheques were stated to have been given by Kangeyam Town Panchayat to both of them, and when PW.3, has clearly stated that he did not have any account in any bank, and when both the witnesses have not maintained the details of number of lorries supplied with water and when admittedly Pws.3 and 13 are relatives, it is not known, as to how, the Enquiry Officer, has arrived at the conclusion on the charge that the petitioner has conducted himself in unbecoming a member of the government servant.
29. In the earlier paragraphs of this judgment, this Court has considered, as to how, PW.1, was litigating a case, regarding the allotment of a place, in the new bus stand, which went upto Hon'ble Supreme Court, in which, the petitioner was the respondent. Material on record also discloses that the writ petitioner has been threatened by the lessees of the old bus stand, for which, he has requested the District Collector, Periyar District, to take action, and finding prima facie, the District Collector has also requested the District Superintendent of Police, Periyar District, Erode, to provide police protection to the petitioner. The said letter is extracted hereunder:
fh';fak; ngU:uhl;rpapy; bray; mYtyuhd jpU/tp/uhkrhkp mg;ngU:uhl;rpapy; giHa ngU:e;J epiyaj;jpy; gy tUl';fshf khj thlifia ,yhfhtpw;F brYj;jhj tzpfk; bra;j egh;fspd; Fj;jifchpikia eph;zapf;fg;gl;l eilKiwapd;go uj;J bra;J mg;g[wg;gLj;jpa[s;shh;/ g[jpa ngU:e;J epiyak; kw;Wk; tzpf tshfk; Vw;gLj;jg;gl;lt[ld; giHa ngUe;J epiyaj;jpy; khj thlif brYj;jhj egh;fs; g[jpa tzpf tshf Fj;jif chpikia mspf;fhJ. bghJ K:yk; khj thlif U:/50.000-= tUtha; <l;Lk; eltof;ifapid vLj;Js;shh;/ gy Mz;Lfshf Fj;jif ghf;fpapid brYj;jhj egh;fs; Fj;jif ghf;fp Vjk; brYj;jhJ bjhlh;e;J g[jpa ngUe;J epiya tzpf tshfj;jpy; mikf;fg;gLs;s filfis j';fSf;nf mspf;ff;nfhhp brd;id cah;ePjpkd;wj;jpy; tHf;Fj; bjhlh;e;jjd; epiyapYk; kPwpePjpkd;wj;jpy; vjphp thJiu bra;J tHf;fpid js;Sgo bra;J Miz bgw;W giHa Fj;jifjhuh;fs; g[jpa tzpf tshfj;jpy; ve;jtpj filfSk; mspf;ftpy;iy/ ,e;eltof;iffspy; ghjpg;gile;j giHa Fj;jifjhuh;fshd jpU/Rg;gpukzpak; kw;Wk; gHdpr;rhkp ft[z;ld; kfd; vUikf;fhu nfhtpe;jd; vd;w egh; Mfpa ,Uth; mt;tYtyh; 30/08/90k; njjpapy; jd; gjptp;gbghWg;g[fis khWjy; epkpj;jk; g[jpa mYtyhplk; xg;g[tpf;Fk; nghJ mYtyfj;jpDs; eiHe;J bray; mYtyh; jpU/tp/uhkrhkpia mr;Rwj;jp kpul;oa[s;shh;fs;/ ,e;epfH;t[ bjhlh;ghf fh';fak; bray; mYtyh; jpU/tp/uhkrhkp rkh;g;gpj;Js;s tpz;zg;gk; ,j;Jld; ,izj;J mDg;gp itj;Js;nsd;/ mr;RWj;jp kpul;Lk; Kfkhf bray;gLk; ngUe;J epiya giHa Fj;jifjhuh;fshy; Fwpg;ghf jpU/V/Rg;gpukzpak; kw;Wk; nfhtpe;jrhkp Mfpnahh;fshy; bray; mYtyh; jpU/tp/uhkrhkpapd; clikf;Fk; capUf;Fk; g';fk; Vw;gLk; tha;g;g[fs; cs;sd/ g';fk; tpistpf;Fk; vz;zk; cs;s ,t;tpU egh;fisa[k; fz;fhzpj;J chpa eltof;if nkw;bfhs;s nfl;Lf;bfhs;fpnwd;/ nkYk; jpU/uhkrhkpapd; FLk;gk; jw;nghJ Lnuhl;oy; nrl; fhydpapy; (mfpy; nkL tPjp) f/vz;/76y; FoapUe;JtUfpd;wdh;/ mtuJ Flk;gj;jpw;Fk; jf;f ghJfhg;g[ mspf;f Vw;ghL bra;a[k;goa[k; nfl;Lf; bfhs;fpnwd;/
30. Though absolutely no records have been maintained by PWs.3 and 13, as to how many lorry loads were supplied by them and when there were no details of bank accounts, without considering the explanation in proper perspective, the enquiry officer has bluntly arrived at the conclusion that the charge as proved. Here again, the Disciplinary Authority, in a very casual manner, has addressed the issue, as technicalities in the inquiry proceedings, without considering the explanation of the petitioner and confirmed the same.
31. Material on record indicates that during 1989 to 1990, severe drought has prevailed in Kangeyam, resulting in the Collector of Periyar District, granting permission to (1) Rent a private lorries on hire, for fetching water and (2) to take water from private wells by paying charges. Payment to the lorry owners and owners of private wells has been paid once a week. The entire payment, admittedly has been made through cheques. Initially water has been taken from the wells belonging to Mr.N.K.Muthusamy and Mr.Ramasamy. Material on record indicates that in the beginning, they were supplying water only to Kangeyam town panchayat. Lateron, in order to make more money, the abovesaid persons have started supplying water to hotels and transport corporation. As a result, water could not be supplied in time, to the people of Kangeyam, and that they have started agitations. In view of the same, the petitioner and the President of the Town Panchayat have taken steps to change the wells. In fact, a report has been sent to the Collector, (in file No.102/89 pale 673-692) informing him, as to how, the wells of above two individuals were not properly utilized. These aspects have not been considered by the authorities at all.
32. Material on record further discloses that apart from the wells belonging to Mr.N.K.Muthusarny (PW3) and Mr.Ramasamy (PW.13), water has been drawn from the wells belonging to Mr.A.P.Duraisamy, Mr.Natarajan and at Mr.Chinnasamy. There is absolutely no complaint whatsoever from the abovesaid three persons and the defence of the petitioner to this effect, has not been properly adverted to, by the authorities. As rightly contended by the learned counsel for the petitioner, perusal of the deposition of PW.3 and PW.13 would reveal that they have not lodged any complaint. Whileso, it is not known as to how the DV and AC had directly examined them and whey the same yardstick was not applied to other three Water Suppliers.
33. Regarding Charge No.2, PW.1, PW.2, PW.5, PW.8 and PW.9 have been examined. As regards Charge No.2, the petitioner, in his explanation has submitted that On 30.03.1990, PW.1, A.S.Palanisami, has submitted an application and remitted the amount for water connection. According to the petitioner, on the same day, work order was also issued to him, as per which, he has to make ready with the pipelines, for taking water to his house from the main connection. However, he did not do so, as required nor did he inform the panchayat about the completion of work from his side. On 17.04.1990, there was an order passed by the Collector, directing the panchayat not to grant any new connections, in view of severe drought. Hence connection was not given.
34. The petitioner has further submitted that PW.1 has taken a shop on lease in the name of his father at the old bus stand. He has committed default in making payments resulting in Rs.58,000/-, due from him, for the periods from 1982 -1983 to 1989-1990. A suit has been filed by the petitioner to recover the said amount and that the same was decreed. In the meanwhile, PW1 wanted to take one shop in the new bus stand. The petitioner did not oblige him and instead, decided to go for public auction, as per the rules. The same was challenged by PW.1 and others by filing a Writ Petition. This Court held that the petitioners therein, viz., PW.1 and others, who were defaulters have not approached the court with clean hands and dismissed the writ petition. The same has been confirmed in Writ Appeal and in SLP also.
35. It is the further case of the petitioner that being an influential man in the locality, PW.1, could not digest the petitioner's action and that he was waiting for a chance to settle scores with him. At the time, when the petitioner was about to be relieved from Kangeyam, at the instigation of PW.1 and PW.3, some goondas came and threatened him in his office. A complaint was also lodged by the petitioner on 30.8.1990 to the then Collector, who has requested the Superintendent of Police, to give protection to the petitioner and his house. PW.1 himself has admitted that there was a ban on granting new connections in his cross examination.
36. As regards the deposition of PW.9, S.Viswanathan, PW.8, Gopal and PW.5, K.Chandrasekaran, the petitioner in his explanation, has contended that none of the above witnesses have lodged any complaint to the Collector or to any other authorities. While so it is not known on what basis they were enquired by the DV and AC.
37. As regards PW8 and PW5, it is the contention of the petitioner that they had obtained water connection even prior to the petitioner joining duty at Kangeyam. The petitioner has further submitted that based on the complaints received from the public that PW8 and PW5 were selling water, an inspection was done by the petitioner which revealed that both of them have taken water connection directly from the main Overhead Tank. As a result, they had uninterrupted supply of water, whereas, the other people were given water, only through distribution line intermittently.
38. It is also the contention of the petitioner that in the abovesaid circumstances, the said water connection was disconnected by the petitioner and steps were taken by him, to provide water supply from the distribution line, so that they would also get water only, when the others in the locality get. The petitioner has also pointed out that both the witnesses were getting uninterrupted water supply, prior to the petitioners intervention. According to him, disconnection of the existing connections has infuriated Pws.8 and 5 and that they were waiting to take revenge on the petitioner.
39. As regards PW.2, A.Palanisamy, the petitioner has contended that PW.2, has turned hostile at the time of enquiry and has also admitted that he got connection only on the basis of seniority and did not pay any bribe nor was it demanded by the petitioner.
40. Findings on Charge No.2, is assailed on the grounds that there is no evidence to show that he had received bribe to give drinking water connection. Attention of this Court was invited to the statement of the witnesses. Motive is also alleged. Materials enclosed in the typed set of papers shows that out of five witnesses examined, in support of Charge No.2, PW.1, A.S.Palanisamy, has deposed that a sum of Rs.126/- was paid on 30.03.1990, for getting water connection. According to him, on 30.03.1990, when he went to Kangeyam Town Panchyat, he had Rs.326/-. In his evidence, he also deposed that along with the application, he has submitted a plan. But, in the files produced during departmental enquiry, the application form and plan were not available. Relevant portion is extracted hereunder:
30/03/90e; njjp fh';fak; ngUuhl;rpf;F ehd; nghdnghJ 326-= U:gha; bfhz;Lbrd;nwd;/ 30/03/90e; njjp tpz;zg;gk; g{h;j;jp bra;J bfhLj;njd;/ me;j tpz;zg;gj;ij g{h;j;jp bra;jJ ahh; vd;W vdf;F jw;nghJ "hgfkpy;iy/ nkw;go tpz;zg;gj;Jld; FoePh; FHha; ,izg;g[ bghLg;gJ rk;ge;jkhf tiugl';fisa[k; ,izj;J bfhLj;njd;/ jw;nghJ vd;dplk; fhl;lg;gl;l 30/03/90e; njjp ehd; bfhLj;j tpz;zg;gk; cs;s nfhg;gpnyuh kw;w nfhg;g[fspnyh ehd; me;e tpz;zg;gj;Jld; ,izj;J bfhLj;j tiugl';fs; ,y;iy/
41. Cross-examination by PW.1, by the petitioner shows that earlier when PW.1, made a request to the petitioner, to provide a place for A.S.B Cloth Centre, in the new bus stand, the petitioner has refused. The aggrieved persons have filed cases, which went upto the Hon'ble Supreme Court and that the petitioner has opposed the claim. Except the statement of PW.1, there is no other witness to speak about the demand.
42. Though PW.2, A.Palanisamy, during cross-examination has stated that the petitioner did not demand money, he has deposed that he had met the petitioner for water pipe line service connection and he has also stated that as per the seniority, water connection was given. His deposition is extracted hereunder:
rPdpahhpl;ogo vdf;F FoePh; FHha; ,izg;g[ fpilj;Jtpl;lJ/ F/rh/m/ gzk; vJt[k; vd;dplk; nfl;ft[kpy;iy/ ehd; bfhLf;ft[k; ,y;iy/
43. Though PW.9, Viswanathan, has deposed that the petitioner demanded Rs.450/- for getting water pipe line connection and he paid the same, during cross-examination, he has deposed that at the time of investigation, he has not mentioned any specific date and month of the alleged incident. PW.9, has not even informed the same to the Panchayat President. Water connection was given in the year 1990.
44. Though PW.8, K.N.Gopal, has deposed that he has paid a sum of Rs.300/-, it is his categorical evidence that when the Inspector of Vigilance and Anti-Corruption, enquired, he has made a statement and further deposed that he has not made any complaint about the alleged incident, which took place during 1988, to the Panchayat President and others. Perusal of his statement shows that when the Inspector of Police, Vigilance and Anti-Corruption enquired him, he has not made any statement, regarding demand. There are no details, in his deposition, as to what date, bribe was alleged to have been paid.
45. Similarly, PW.5, K.Chandrasekaran, in his evidence, has not given any specific date and month of the alleged incident, which took place in the year 1988. From the perusal of the evidence, recorded and enclosed in the typed set of papers, except the statement of PW.1, other witnesses have not given any legally acceptable evidence to prove that money was parted with. As stated supra, one of the witnesses, PW.2, has given a statement that water pipe line service connection was given, as per the seniority. PW.9, has not lodged any complaint against the petitioner. His statement has been recorded on 22.03.1996 in the departmental enquiry. Though the petitioner has submitted a written submission to the enquiry officer, in his report, the enquiry officer has recorded as follows:
Arguments of prosecution side and the counter arguments of the defence side have been examined carefully prosecution witnesses 1, 5, 8 and 9, in their statements have clearly speak about the demand and acceptance of illegal gratification by the delinquent officer. Though the prosecution witness 2 turned hostile during the cross examination by the prosecution he had admitted that the delinquent officer had demanded Rs.300/-. Hence, this charge is held proved.
46. The enquiry officer is bound to scrutinse and assess the evidence adduced by the parties and discuss the same and also record the reasons, as to why, explanation offered by the delinquent, is not acceptable. He has only recorded that Pws.1, 5, 8 and 9 have clearly spoken about the demand and acceptance, which in the opinion of this Court, does not amount to proper consideration of the explanation offered. Though prosecution witness, PW.2, has turned hostile, during cross-examination, for the purpose of holding Charge No.2, as proved, the enquiry officer has not accepted his evidence. Such an approach is incorrect. The enquiry officer cannot go beyond the evidence tendered by a witness. He must record reasons, as to why he is not accepting the evidence.
47. It is well settled that the disciplinary authority is bound to consider the evidence on record, explanation offered in the defence, and arrive at a proper conclusion. While agreeing with the findings, the Disciplinary Authority has observed that the delinquent was not able to disprove the case. When the petitioner has submitted a detailed explanation, as to how, charges have been framed against him, belatedly, for the alleged incidents, which occurred in the year 1988-90 and when the alleged demand and payment has been disputed and when the witnesses have not given any specific dates and month and when the petitioner has alleged motive and given instances, regarding the earlier disputes, it is the duty of the Disciplinary Authority to consider the same, in proper perspective, instead of making a generalised statement, Interferences, cannot disprove direct and unambigious statements of witnesses.
48. As regards Charge No.3, PW.3 and PW.11, have been examined. The petitioner has contended that it was only pursuant to the order passed by the Collector that two persons were appointed as NMR. No payment was made to them till petitioner was relieved, as they did not complete the work assigned to them. The petitioner has contended that there is absolutely nothing to show that any corrupt motive was involved. According to him, it is the common feature in all town panchayats to appoint NMRs. He has also pointed out that deposition of PW.10 and PW.11 would go to show that petitioner had engaged them properly and after getting orders of Collector in order to complete enumeration of houses.
49. As regards Charge No.3, is concerned, PW.10, Latha, has stated that on instructions of the petitioner, she had worked in Kangeyam Panchayat, for nearly four months and that she was not provided with any renumeration. As regards the abovesaid charge, the petitioner has submitted that when the District Collector, Periyar District, has directed numbering of the houses and due to the work load, he had nominated part-time Section Assistants, to temporarily assist the work.
50. There is no allegation that persons, who did the work, have misused the Office, nor there were any complaint, by any of the staff members, when their services were utilised to carry out the directions of the District Collector, Periyar District, for numbering the houses. Three witnesses have spoken about the engagement of Smt.Latha and Smt.Kaladevi. PW.10, Smt.Latha, in his evidence, has stated as follows:
1990 gpg;uthp my;yJ khh;r; khjj;jpd; xU ehs; ehd; tPl;oy; ,Ue;jnghJ. Vd; jfg;gdhh; vd;dplk; te;J fh';fak; ngU:uhl;rpapy; cs;s tPLfSf;F fjt[ ,yf;fhfs; nghlg;gl ntz;oa ntiy ,Ug;gjhft[k;. jhd; F/rh/m/tplk; mJ rk;ge;jkhd ntiy vdf;F bfhLf;Fk;go Twpa[s;sjhft[k;. me;j ntiyia bra;JbfhLf;Fk;goa[k; vd;dplk; Twpdhh;/ vdJ jfg;gdhh; brhd;dJnghynt fh';fak; ngU:uhl;rpf;F ngha; F/rh/m/itg; ghh;j;J. Vd; jfg;gdhh; brhy;yp mDg;gpa tpguj;ij brhd;ndd;/ MgP!py; igy;fis vLj;Jf;bfhLf;Fk; ntiy nghd;w rpy;yiu ntiyfis bra;a vd;idg; gzpj;jhh;/ ,uz;L khj fhyk; me;j ntiyfis ehd; bra;njd;/ mjd; gpd;dh; fh';fak; ngU:uhl;rpapy; cs;s tPLfSf;F fjtpyf;fk; nghLk; gzpapy; vGJgth;fSf;F ehd; cjtp bra;njd;/ mg;ngU:uhl;rpapy; Rkhh; 4 khj';fs; ntiy bra;njd;/ In the cross-examination, PW.10, Smt.Latha, has further stated as follows:
ehd; fh';fak; ngU:uhl;rpay; gzpbra;j fhy';fspy; brhj;Jthp okhz;L nghd;w igypy; kw;Wk; ngU:uhl;rp vy;iyf;Fl;gl;l gFjpfspYs;s tPLfspy; thpir vd; igy;fs; Mfpa ,e;j rpy;yiu ntiyfisr; bra;J te;njd;/ ,J jw;fhypf ntiy/ ehd; gzpapy; nrh;ej gpwF bghpahh; khtl;l Ml;rpj; jiyth; fh';fak; ngU:uhl;rp vy;iyf;Fl;gl;l tPLfSf;F thpirahf tPl;L vz;fs; ,l ntz;Lk; vd;w cj;jput[ nghl;ljpd; fhuzkhf vd;id mt;ntiyf;F jw;fhypfkhf gzpj;Js;shh;fs; vd bjhpe;Jbfhz;nld;/ ehd; gzpapypUe;J tpyFk; fhyk; tiuapYk; me;j ngU:uhl;rp tPLfSf;F fjt[ vz;fs; bfhLf;Fk; ntiy Kotilatpy;iy/
51. PW.11, Tmt.K.B.Vasantha, Head Cleark, Muthur Town Panchayat, in her cross-examination, has stated as follows:
F/rh/m/ ,Ue;j fhyj;jpy;jhd; bghpahh; khtl;l Ml;rpj; jiythpd; cj;jput[f;Ffpz';f fh';fak; ngU:uhl;rp vy;iyf;Fl;gl;l tPLfspy; thpirahd bjhlh; vz;fs; ,Lk; gzp Jtf;fg;gl;lJ/ me;j tPLfs; midj;jpw;Fk; thpir vz;fs; ,lg;gl;L Kot[w;wgpwF ehd; 200 tPLfSf;F xU ehs; rk;gsk; vd;W rk;gs tPjk; FwpaPL bra;ag;gl;lJ////////// tPl;L thpir vz;fis nghLtj;w;fhf bghpahh; khtl;l Ml;rpj; jiyth; gFjp neu vGj;jh;fis <LgLj;jpf;bfhs;syhk; vd;W fh';fak; ngU:uhl;rpf;F Miz gpwg;gpj;jpUe;jhh;fs;/ mjd;nghpy; F/rh/m/ muR rhl;rp 10 kw;Wk; xUtiu gFjpneu vGj;jh;fshf mjd;nghpy; F/rh/m/ muR rhl;rp 10 kw;Wk; xUtiu gFjpneu vGj;jh;fshf gzpapy; mkh;j;jpapUe;jhh;/
52. PW.14, K.Thavasiappan, Head Clerk, P.Puliyampatti Panchayat Union, in his evidence, has stated that, fh';fak; ngU:uhl;rpapy; ntiyg;gS mjpfk; ,Ue;jjhy;. F/rh/m/ fyhnjtp kw;Wk; yjh vd;w ,Uz;L bgz;fis ntiyapy; mkh;j;jpdhh;/ mYtyf cj;jput[ Vjtpkpy;yhky;jhd; ntiyapy; nrh;jpdhh;/ mth;fSf;F mYtrf Mtz';fspd;go nkw;go ,uz;L bgz;fSf;Fk; rk;gsk; Vjk; jug;gotpy;iy/ mth;fs; Rkhh; 4 khj';fs; ntiy bra;jdh;/ mYtyfj;jpy; ,Ue;j rpy;yiu ntiyfisa[k;. fh';fak; ntUuhl;rpapy; ,Uf;Fk; tPLfSf;F fjt[ vz;fs; vGJtjw;fhf !;nll;bkz;l; jahhpf;Fk; ntiy Mfpait bra;Jte;jhh;fs;/
53. Both the official witnesses, PW.11 and PW.14, have categorically admitted that there was a work load in Kangeyam Town Panchayat, in which, the petitioner worked. They have also deposed that the District Collector, Periyar Nagar, has issued orders, to number the houses. As per the version of PW.11, Tmt.K.B.Vasantha, Head Cleark, Muthur Town Panchayat, the District Collector, Periyar Nagar, has issued orders, to engage part-time assistants in Kangeyam Town Panchayat. When the witnesses examined, on behalf of the department themselves have admitted that engagement of the abovesaid two persons, viz., Latha and Kaladevi, was only for the purpose of numbering the houses in Kangeyam Town Panchayat, which is also the statement of PW.10, Latha, the findings of the enquiry officer that by applying private persons to work in Town Panchayat, the petitioner has conducted himself, in unbecoming of a Government servant, cannot be sustained.
54. When the petitioner has offered a detailed explanation, as to how and under what circumstances, temporary services of the abovesaid two persons, were utilised and that too, in order to comply with the directions of the District Collector, Periyar Nagar, taking note of the work load, the Disciplinary Authority, without adverting to the evidence and explanation, has simply accepted the findings of the enquiry officer, as follows:
I fully agree with the findings of the Inquiry Officer and hold the charge fully established.
55. As regards Charge No.4, PW.11 and PW.14, have been examined. The petitioner has contended that Karuppan (Menial Staff) was working for more than 10 years and he was a hard worker, which is admitted by PW11, PW12, and PW14. It is also the case of the petitioner that though he had ordered for an enquiry in respect of Sweepers conduct, since he had tendered unconditional apology to the office, and to all authorities of the council, the President has directed his reinstatement. The petitioner has further contended that the said Sweeper was reinstated, pursuant to the order of the President.
56. As regards Charge No.4, is concerned, the Department has examined PW.11, Tmt.K.B.Vasantha, Head Cleark, Muthur Town Panchayat and PW.12, Thiru.R.Krishnamoorthi, Maistry, Kangeyam Town Panchayat. PW.11 has stated that one Mr.Karuppan, was working as a Sweeper and that on 31.05.1989, when salary was disbursed in the evening, the said Karuppan, shouted for delayed payment. He was under intoxication. A complaint was made to the Police. Disciplinary action was initiated by the petitioner on 31.05.1989. Thereafter, he was taken back to duty. According to PW.11, when he submitted his report on 14.09.1989, he has not made any recommendations. However, in his cross-examination, PW.11, has stated that even on 31.05.1989, the said Karuppan, apologised for his behaviour. The said Karuppan had worked for nearly 10 years in Kangeyam Town Panchayat, and he was a honest and hard worker. When he was under suspension, his family was suffering and therefore, a representation was also made to the Vice President for re-instatement.
57. PW.12, Krishamurthy, has deposed that he was a Maistry in Kangeyam Town Panchayat and his work was to supervise sanitary workers. When Karuppan shouted at the Office at 3.30 P.M., he made a report to the petitioner. Therefore, Karuppan was suspended on 31.05.1989 itself. He was under suspension for nearly 3 to 4 months. He was a poor sanitary worker.
58. From the above evidence, it could be seen that the said Karuppan, a Sanitary Worker, has been working in Kangeyam Town Panchayat and according to PW.11, he was a honest worker. But on 31.05.1989, when he conducted himself in an inorderly manner, he was placed under suspension from 31.05.1989 itself. Subsequently, the said Karuppan was re-instated, vide proceedings in Rc.No.989/89/A, dated 21.10.1989, as Sweeper.
59. May be, the petitioner has not passed any final orders in disciplinary proceedings, after the formulation of Charge Memo No.989/89, dated 31.07.1989, but that cannot be said he has exceeded in his jurisdiction, in reinstating the sanitary worker in service. Re-instatement of service is well within his jurisdiction. It is well settled that the power of suspension, includes power to re-instate a person in service. From the material on record, it could be deduced that the said Karuppan, Sweeper, had worked for 10 years and stated to be a honest and sincere worker. He was under suspension for 5 months. It is the evidence of Pws.11 and 12 that the said Karuppan was also poor and suffering. The enquiry officer seemed to have taken note of the criminal case filed under Section 75(c) of the MCP Act, in which, the said Karuppan was imposed with a fine of Rs.50/-. Therefore, the findings of the enquiry officer that when a criminal case was pending against the said Karuppan, the petitioner ought not to have been reinstated in service, is wholly erroneous. Reinstatement can be ordered, depending upon the facts and circumstances of each case. Here again, when the petitioner has offered his explanation, coupled with the evidence, as stated supra, the Disciplinary Authority, has merely recorded as follows:
I fully agree with the findings of the Inquiry Officer and hold the charge fully established.
60. As regards Charge No.5, PW.6 has been examined. It is the case of the petitioner that PW.6 is a relative of PW.1 and the same could be ascertained from the cross examination of PW.12. It is also the petitioner's case that PW.6 has not paid the planning approval fee and it would go to show that he had not actually submitted a plan for his house. It is the further case of the petitioner that the address given by him, is in respect of a completed house, which stands in his fathers name, for which house tax has been paid already. According to him, he is alleged to have submitted the form on 24.6.87 to one Junior Assistant Mr.Chinnappan and subsequently, to another Junior Assistant, Mr.Subbukutty. The said person was assisting the petitioner in preparing the case against PW.1 and was regularly accompanying petitioner in all the legal proceedings. The said Subbukutty was also removed from the service on the same charge levelled by PW.6. However, by a considered judgment, the order of dismissal was quashed by the Tribunal in O.A.No.7638/1997 and that the same has been confirmed by this Court in W.P.No.8071/2005. The petitioner has pointed out that on 29.5.1989, PW.6 alleged to have sent a complaint to the Collector and DV and AC, but no copies were marked in the departmental enquiry, stating that files have been destroyed.
61. Insofar as Charge No.5 is concerned, PW.6, K.Palanisamy, is one of the witnesses examined, to prove the allegation. The allegation of payment of Rs.200/- was stated to have been on 18.05.1989. Though PW.6, has stated that he had sent complaints to the District Collector, Vigilance and Anti-Corruption Department and no action was taken, no document has been filed before the Enquiry Officer, in support of his contention that complaints were sent.
62. Quite contrary to the same, in his cross-examination, PW.6, has stated that he has not made any complaint to higher authorities. According to him, on 24.06.1989, when he met the petitioner, who was the then Executive Officer, he asked him to meet one Chinnappan, who demanded Rs.200/-. But he has not informed the same to the higher officials. Based on his sole statement of PW.6, recorded on 22.03.1996, after seven years, the Enquiry Officer, has held that the charge as proved.
63. PW.6, K.Palanisamy, has deposed that the house was constructed in the name of his father, Kolandasamy Gounder. As per the evidence of PW.11, Tmt.K.B.Vasantha, Head Cleark, Muthur Town Panchayat, the said house, belonging to Kolandasamy Gounder, within Muthur Town Panchayat, had been levied house tax, even prior to 24.06.1987. When PW.11 has categorically stated that house tax had been levied, for the house of PW.6, K.Palanisamy's father, Kolandamy Gounder, it is not known, as to how, the Enquiry Officer, could arrive at a conclusion that the petitioner has demanded Rs.500/-, for approving the plan and accepted Rs.200/-. Only after the approval of plan, building could be constructed and tax levied. On the detailed explanation, submitted by the petitioner, the Disciplinary Authority has recorded as follows:
I agree with the findings of the Inquiry Officer and hold the charge proved.
64. One of the grounds of attack is that there is a delay in initiation of disciplinary proceedings for nearly four years. Reference can be made to few decisions,
(i) State of Madhya Pradesh v. Bani Singh and another reported in 1990 (Supp) SCC 738;
(ii) State of Punjab and others Vs.Chaman Lal Goyal reported in 1995 (2) SCC 570;
(iii) M.Balakrishnan and 7 others Vs. The Corporation of Madurai and another reported in 1995 (II) CTC 589;
(iv) Commissioner, Sankarapuram Panchayat Union etc. Vs. S.A.Abdul Wahab and others reported in 1996 W.L.R.677,
(v) B.Loganathan Vs.The Union of India, rep.by the Secretary to Government of Union Territory of Pondicherry, Department of Local Administration, Pondicherry and another reported in 2000 (III) CTC 351,
(vi) C.P.Harish Vs. The Central Warehousing, represented by its Managing Director, 4/1, Siri Institutiional Area, New Delhi reported in 2000 (IV) CTC 517;
(vii) A.Obaidullah Vs. The State of Tamil Nadu, rep.by the Secretary to Government, Home Department, Secretariat, Chennai and another reported in 2005(5) CTC 380;
(viii) Union of India v. Central Administrative Tribunal reported in 2005 (2) CTC 169 (DB);
(ix) P.V.Mahadevan v. M.D. Tamil Nadu Housing Board reported in 2005 (4) CTC 403;
(x) The Special Commissioner and Commissioner of Commercial Taxes, Chepauk v. N.Sivasamy reported in 2005 (5) CTC 451;
(xi) R.Tirupathy and others v. the District Collector, Madurai District and others reported in 2006 (2) CTC 574;
(xii) M.V.Bijlani v. Union of India and other reported in 2006 (5) SCC 88;
(xiii) M.Elangovan v. The Trichy District Central Co-operative Bank Ltd., reported in 2006 (2) CTC 635;
(xiv) G.Anand Vs. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai-5 and others reported in 2006(5) CTC 723;
(xv) A.Bommusamy Vs. The Government of Tamil Nadu and others reported in 2007 (3) CTC 518;
(xvi) K.Kumaran Vs. The State of Tamil Nadu by Secretary to Government, Agricultural Department, Chennai and another reported in 2007(3) CTC 763;
(xvii) Ranjeet Singh Vs. State of Haryana & others reported in 2008 (3) CTC 781;
(xviii) S.Rathinavelu Vs. The Chairman, Tamil Nadu Water Supply and Drainage Board, 31, Chepauk, Chennai-5 and another reported in 2009(2) CTC 513;
(xix) Kootha Pillai Vs. Commissioner, Municipal Administration, Chennai and others reported in 2009(1) MLJ 761;
(xx) S.Sekar Vs. Commissioner of Social Welfare, Ezhilagam, Chennai reported in 2010 (1) MLJ 708.
65. In the case on hand, for the alleged incidents of the year 1988-90, charges have been framed in the year 1994 and the enquiry has resulted in punishment in the year 1997. Charges have been framed after five years from the alleged incidents in 1989-90. There is no proper explanation.
66. An appeal, dated 01.10.1997, submitted to the Government, has been rejected, vide G.O.(BD)No.349, dated 19.05.2002. Perusal of the appellate order, shows that after extracting the details of the disciplinary proceedings, upto the order of dismissal, at Paragraph 3, the Government have sought for opinion of the Tamil Nadu Public Service Commission and after accepting the same, vide orders, dated 10.04.2002, has rejected the appeal of the petitioner. At paragraph 5 of the appellate order, it is stated as follows:
5/ <nuhL khtl;lk;. fh';nfak; ngU:uhl;rpapd; Kd;dhs; bray; mYtyh; jpU/tp/uhkrhkpapd; nky; KiwaPl;oidj; bjhlh;g[ila Mtz';;fs; kw;Wk; jkpH;ehL muRg;gzpahsh; njh;thizaj;jpd; fUj;Jf;fs; Mfpatw;wpd; mog;gilapy; muR ftdkhft[k;. Rakhft[k;-Ma;t[ bra;J njh;thizaj;jpd; fUj;jpid Vw;fyhk; vd;W Kot[ bra;fpwJ/ mt;thnw. nky; KiwaPl;lhsh; jpU/tp/uhkrhkpapd; nkw;KiwaPl;oid muR fU;jjhff; fUjp epuhfhpj;J nkny Kjyhtjhfg; gof;fg;gl;l ngU:uhl;rpfspd; ,af;Fehpd; eltof;ifapy; tH';fpa gzpawt[ Dismissed from Service rhpbad;Wk; jz;lidia cWjp bra;J muR MizapLfpwJ/
67. Along with the copy of the appellate order, opinion of the Tamil Nadu Public Service Commission has been sent to the petitioner. From the above, three things are clear. Firstly, the opinion of the Tamil Nadu Public Service Commission, dated 10.04.2002, has been put against the petitioner. Secondly, copy of the said opinion, has not been furnished to the petitioner and thirdly, the appellate authority has failed to consider the appeal, independently on merits. As regards, points 1 and 2, this Court deems it fit to consider a decision, as to whether, non-furnishing of the copy of the opinion, would amount to violation of the principles of natural justice.
68. In Union of India and others v. S.K.Kapoor reported in 2011(4) SCC 589, the Supreme Court held as follows:
It is a settled principle of natural justice that if CIVIL APPEAL NO.5341 OF 2006 any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India v. T.V.Patel, (2007) 4 SCC 785.
We do not agree.
In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel's case is clearly distinguishable.
There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the CIVIL APPEAL NO. 5341 OF 2006 same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice.
This is also the view taken by this Court in the case of S.N.Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula's case (supra) was not noticed in T.V.Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
69. It is also well settled that the appellate authority, while agreeing with the views expressed by the disciplinary authority need not write a detailed order, like that of a judgment. Nevertheless, the appellate authority has to independently consider the evidence on record and the defence putforth by the charged official and pass a reasoned order. Exercise of the power of the appellate authority under rule 23 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, is as follows:-
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) of 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 , after giving the appellant a reasonable opportunity of making representation against the penalty proposed on the basis of the evidence adduced during the enquiry, make such orders as it may deem fit ; and
(iii) no order 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 (a) 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 in writing, that error or defect was not material and has neither cause injustice to the person concerned nor affected the decision of the case.
70. In this context, it is useful to refer to few decisions of this Court as well as the Hon'ble Supreme Court, as to how the word "consider" employed in the discipline and appeal rules, have to be considered and applied for disposal of an appeal. While explaining the word "consider" employed in Rule 27(2) of the Central Civil Services (Classification and Appeal) Rules, 1965, the Hon'ble 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."
71. 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.
72. 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."
73. 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."
74. 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.
75. 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."
76. 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."
77. 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)
78. 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. Judgment rendered in National Fertilizers Limited and another v. P.K.Khanna reported in 2005 (7) SCC 597, has also been taken into consideration.
79. 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."
80. 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.
81. 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."
82. 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.
83. 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."
84. Another Hon'ble 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."
85. Some of the decisions worth consideration, are as follows:
(i) In Sawai Singh v. State of Rajasthan reported in (1986) 3 SCC 454, the Supreme Court held that, "16. But in a departmental enquiry entailing consequences like loss of job which now-a-days means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation.
17. The application of those principles of natural justice must always be in conformity with the scheme of the Act and the subject matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical natural justice. The requirements of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties."
(ii) In M.S.Bindra v. Union of India reported in 1998 (7) SCC 310, the Supreme Court held that while viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion.
(iii) In The Tamil Nadu Civil Supplies Corporation Ltd., & Another v. S.Sampath, reported in 2005 (1) LW 795, a Hon'ble Division Bench of this Court held that a perusal of the impugned order therein shows that no reasons have been given therein, but only conclusions. There is a difference between reasons and conclusions. Thus, what has been recorded in the impugned order, as can be seen from its perusal, is only conclusions and not reasons.
(iv) In Moni Shankar v. Union of India reported in (2008) 3 SCC 484, the Supreme Court held thus, 17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
(v) In M.V.Bijlani v. Union of India and others reported in (2006) 8 SCC 8, the Apex Court stated the law in the following terms :-
"25. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
(vi) In Roop Singh Negi v. Punjab National Bank and Ors., reported in 2009 (2) SCC 570, the Supreme Court, at Paragraphs 14 and 23, held that, 14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties.
.........
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible.
(vii) In G.Vallikumari v. Andhra Education Society and Others reported in 2010 (3) MLJ 1375 (SC), the Hon'ble Supreme Court held that the requirement of recording reasons by every quasi judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the concerned authority.
86. As rightly contended by the learned counsel for the writ petitioner, the Government, as an appellate authority, while passing the order in the appeal did not state any other reason, excepting to accept the opinion of the Tamil Nadu Public Service Commission, which would clearly prove that the appellate authority has passed an order, without considering the grounds raised in the appeal, and applying its mind independently.
87. The opinion of the Tamil Nadu Public Service Commission has not been furnished to the writ petitioner and that opportunity has been given to him to make his submissions as to why the opinion of the Tamil Nadu Public Service Commission should not be accepted. As held by the Apex Court in S.K.Kapoor's case, it amounts to violation of principles of natural justice.
88. As rightly pointed out by the learned counsel for the writ petitioner what the appellate authority has done in this case is to simply extract the views of the Tamil Nadu Public Service Commission and dismissed the appeal. The appellate authority has not dealt with the findings of the Disciplinary Authority, evidence on record, explanation offered. In the order dismissing the appeal preferred by the petitioner, the appellate authority has merely extracted the views of the Tamil Nadu Public Service Commission and proceeded to state that the views of the Service Commission was carefully examined by the Government and that the Government have decided to accept the advice and accordingly dismissed the appeal preferred by the writ petitioner. There is a failure to consider the appeal, in proper perspective. The order of the appellate authority cannot be said to be a reasoned order. On the facts and circumstances of this case, this Court is of the view that the appellate authority, the Government have failed to consider the appeal and independently considered and arrive at a conclusion, as to whether the finding of the Enquiry Officer and as accepted by the Disciplinary Authority, has to be sustained or not. In V.P.Chellappa Vs. Superintending Engineer, Tamil Nadu Electricity Board, Dharmapuri Electricity Distribution Circle, Dharmapur-5 and others reported in (2010) 1 MLJ 714, it is held as follows:
"8.It is well settled that the disciplinary as well as appellate authorities are the fact finding authorities and therefore, when the right of appeal is a substantive right, the appellate authority ought to have passed a reasoned order dealing with the contentions raised in the appeal. At least the appellate authority, in the interest of justice, should have been indicated his mind while disposing of the statutory appeal. Consideration of facts by the disciplinary authority as well as appellate authorities are conspicuously absent in the impugned orders."
89. As stated in the earlier paragraphs of the judgment, the Government in G.O.(D)No.40, dated 06.02.2009, have rejected the review petition. As per Rule 36(2)(c) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, an application for revision shall be dealt with in the same manner as if it were an appeal under these rules. Power of review is provided in rule 37 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules and the said Rule is extracted hereunder:
The State Government may, at any time, either on their own motion or otherwise, review any order passed by them under these rules, when any new material or 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 8 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 inquiry in the manner 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.
90. When the review petition has to be considered, as if, it were an appeal, without considering the parameters to be taken into consideration, while dismissing the review petition, there is a mere reproduction of the TNPSC's views and the earlier order passed in the appeal. Thus, there is a failure on the part of the Government in adverting to the grounds raised in the review petition. Violation of principles of natural justice, at the above stages, is also per se apparent. On the merits also, there is no acceptable evidence to prove the charges.
91. In the matter of enquiry into charges of corruption, when disciplinary proceedings are initiated, and if statements are recorded for some alleged incidents, taken place many years ago and when the witnesses have given statements, without any specific details and if finding of guilt has to be recorded, without any corroboration, it would be dangerous for any Government servant to work. Statements, without any corroboration, ought not to have been relied on for the purpose of arriving at guilt, that too, in respect of charges of corruption, which are criminal in nature. Though in disciplinary proceedings, the test is preponderance of probability, yet the evidence taken on record, should be carefully considered before arriving at the guilt. Motive alleged by the petitioner, is clearly proved. Previous litigation between the parties, have been elicited during cross-examination. It is unbelievable that a person, who has defended action against the witnesses in the matter of allotment of shops in the bus stand upto Apex Court, taken action against some of the witnesses by disconnecting water supply, has demanded money from them. As rightly pointed out by the learned counsel for the petitioner, none of the authorities have considered the probabilities of the case. Letter of the District Collector, Periyar District, itself is indicative of the vindictive nature of some of the witnesses. None of the authorities have considered that the affected lessees, mentioned in the letter of the District Collector alone, have deposed against the petitioner. Preponderance of probabilities are in favour of the petitioner. It is quite natural that persons, who have abused and threatened the petitioner and against whom, a complaint has been made by the District Collector, Periyar District, to the Superintendent of Police, Periyar District, Erode, would depose against the petitioner. Corruption, no doubt, a serious charge. But the same cannot be held proved, on the basis of evidence, which is not supported by any corroboration, either oral or documentary. If a solitary statement alone is the basis for guilt, then all the disciplinary proceedings initiated against Government servants can be disposed of, without any appreciation of defence. No doubt in departmental proceedings, some evidence is sufficient and Courts need not consider the same, as an appellate authority. But that some evidence should be legally acceptable evidence and particularly, in the case of corruption charges, where it requires some corroboration.
92. In the result, the Writ Petition is allowed. The petitioner is entitled to all the consequential benefits. No costs.
19.09.2014 skm S. MANIKUMAR, J.
skm To
1. The Secretary, Government of Tamil Nadu, Municipal Administration and Water Supply Department, Fort St. George, Chennai-9.
2. The Director of Town Panchayat, Kuralagam, Chennai-108.
W.P.No.8699 of 2006(O.A.No.1006 of 2003) 19.09.2014