Madras High Court
R.Chandrajini vs The Agricultural Production ... on 23 February, 2015
Author: V.Dhanapalan
Bench: V.Dhanapalan, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.02.2015
CORAM
THE HONOURABLE MR. JUSTICE V.DHANAPALAN
AND
THE HONOURABLE MS. JUSTICE V.M.VELUMANI
Writ Appeal (MD) No.913 of 2012
& M.P.(MD) Nos.2 of 2012 & 1 of 2013
R.Chandrajini .. Appellant/Petitioner
Vs.
1. The Agricultural Production Commissioner/
Secretary to Government,
Agriculture (AA-2) Department,
Secretariat, Chennai - 9.
2. The Director of Agriculture,
Marketing & Commercial Commissioner,
Anna Nagar, Chennai - 40.
3. The Assistant Director of
Agriculture (Marketing),
Head Post Office Road,
Palayamkottai,
Tirunelveli - 2. .. Respondents/Respondents
Writ Appeal filed under Section 15 of Letters Patents Act against the
order, dated 24.09.2012, made in W.P.(MD)No.12443 of 2012.
!For Appellant :Mr.M.Kalyanasundaram
Senior Counsel
for M/s.Vairam & William Associates
^For Respondents :Mr.C.Selvaraj
Special Government Pleader
Date of reserving the Judgment : 16.12.2014
Date of pronouncing the Judgment : 23.02.2015
:JUDGMENT
V.M.VELUMANI, J.
The writ petitioner in W.P.(MD) No.12443 of 2012 has come up with this appeal challenging the order dated 24.09.2012 passed therein. She filed the said Writ Petition seeking to call for the records in the impugned charge memo in No.E.133/97, dated 27.03.1998 and recovery order in No.E/133/97, dated 29.08.2000, issued by the third respondent and the consequential proceedings in Letter No.10085/AA-2/2000-25, dated 03.10.2003 and Letter No.10085/AA-II/2000-47, dated 15.04.2005, passed by the first respondent pending disposal of the writ petition.
2. Facts of the case are as follows:
(i) The appellant was appointed on 11.09.1987 as Assistant Agricultural Officer and continued to work without any complaint. During the year 1994-1995, she was working as an Assistant Agricultural Officer in the Agriculture Office (Marketing), Tirunelveli. At that time, one Raja Rajendran, who was working as Deputy Agricultural Officer (marketing), Tirunelveli, was assigned the work of grading and labeling the agricultural products manufactured by the farmers in respect of rice and dhal. The appellant was assigned to assist him. After grading the agricultural products, it will be labeled as per the norms fixed by the Government and it will enable the farmers to fetch more selling price. During the said process, grading charges were given to the State Government by paying the same in Treasury Account and the labeling charges to the Central Government by way of Demand Draft, after collecting from the farmers.
(ii) The appellant was issued with a charge memo, dated 27.03.1998, stating that she had not deposited Rs.344/- towards grading charges;
Rs.2900/- towards labeling charges; and Rs.4,110/- towards labeling charges and Demands Draft for a sum of Rs.3,620/- and Rs.4,110/- were not sent to DAMA [Deputy Agricultural Marketing Advisor], Chennai, which was entered in the D.D. Register Book.
(iii) According to the appellant, it is the duty of the Deputy Agricultural Officer to collect grading charges and deposit the same in the Treasury Account and collect labeling charges and send it to Deputy Agricultural Marketing Advisor, Chennai and it is not her duty. In the present case, one Raja Rajendran is responsible for the same. No charges were framed against him and he was allowed to retire on 31.08.1995 on attaining the age of superannuation without any enquiry.
(iv) While the domestic enquiry was pending, by an order dated 29.08.2000, a sum of Rs.2,687/- as loss amount was sought to be recovered from the appellant. She filed an appeal on 27.11.2001 to the State Commissioner for Agricultural Marketing. The said appeal was dismissed by an order dated 07.06.2002. Therefore, she filed O.A.No.4585 of 2002 before the Tamil Nadu Administrative Tribunal, Chennai [hereinafter referred to as "the Tribunal"]. Subsequently, the Tribunal was abolished and the said O.A. was transferred to this Court and it was re-numbered as W.P.No.17305 of 2007. The said writ petition was dismissed on 19.06.2012, holding that the appellant had not challenged the basic order, but she challenged only the consequential order.
(v) According to the appellant, while O.A.No.4585 of 2002 filed by her was pending, another charge memo, dated 03.10.2003, in Letter No.10085/AA-2/2000-25 was issued to her.
(vi) The petitioner has filed W.P.(MD) No.12443 of 2012 to quash the impugned charge memo in No.E.133/97, dated 27.03.1998 and recovery order in No.E/133/97, dated 29.08.2000, issued by the third respondent and the consequential proceedings in Letter No.10085/AA-2/2000-25, dated 03.10.2003 and Letter No.10085/AA-II/2000-47, dated 15.04.2005, passed by the first respondent on the ground that she has not committed any misconduct and misappropriated any amount and the superior Officer, viz., Raja Rajendran, was not issued with any charge memo and allowed to retire without recovering any amount.
(vii) This Court, by an order, dated 24.09.2012, dismissed the writ petition holding that the appellant has not challenged the basic order and the relief sought by the appellant could not be granted on the principle of constructive res judicata. The appellant has preferred the present writ appeal challenging the order dated 24.09.2012, passed in W.P.(MD) No.12443 of 2012.
4. Heard Mr.M.Kalyanasundaram, learned Senior Counsel appearing for the appellant and Mr.C.Selvaraj, learned Special Government Pleader appearing for the respondents.
5. The learned Senior Counsel appearing for the appellant contended that :
(a) the learned Judge erred in dismissing the writ petition on the ground that the appellant has not challenged the basic order and the writ petition is hit by the principle of res judicata and the appellant has challenged the charge memo, dated 27.03.1998, which is the basis for all consequential orders and hence, the learned Judge ought to have decided the issue on merits;
(b) the earlier writ petition was dismissed holding that the appellant has not challenged the basic order. No issue was considered and decided on merits. In the subsequent writ petition, charge memo and consequential orders were challenged. Therefore, the question of res judicata does not arise, as there was no decision on merits in the earlier writ petition;
(c) the first respondent in his proceedings, dated 15.04.2005, has taken into account that Mr.Madhavan, Additional Director/Enquiry Officer, found that the charges against the appellant were not proved and the writ appeal has to be allowed;
(d) the proceedings against the appellant are arbitrary and discriminatory, violating Articles 14 and 16 of the Constitution of India;
(e) the Deputy Agricultural Officer, Raja Rajendran, who was responsible for collecting and depositing the grading and labeling charges, was not proceeded with any enquiry and was allowed to retire on his superannuation and no amount was recovered from him. The charges against the appellant must be dropped, as she is also similarly placed like Raja Rajendran. In fact, the respondents are not proceeding with the Superior Officer, but only proceeded with against the appellant, who is a Subordinate Officer, assigned work to assist the Deputy Agricultural Officer.
6. In support of his submissions, the learned Senior Counsel appearing for the appellant relied on the following judgments:
(i) The Manager, Govt. Branch Press and another Vs. D.B.Belliappa [AIR 1979 SC 429], wherein at paragraphs 18 and 19, it has been held as under:
"18. Mr Veerappa?s first contention is that Articles 14 and 16(1) of the Constitution have no application, whatever, to the case of a temporary employee whose service is terminated in accordance with the terms and conditions of his service because the tenure or the duration of the employment of such an employee is extremely precarious being dependant upon the pleasure and discretion of the employer-State. In our opinion, no such generalisation can be made. The protection of Articles 14 and 16(1) will be available even to such a temporary government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors similarly circumstanced. It is true that the competent authority had a discretion under the conditions of service governing the employee concerned to terminate the latter?s employment without notice. But, such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and 16(1). Article 16(1) guarantees ?equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State?. Moreover, according to the principle underlying Section 16 of the General Clauses Act, the expression ?appointment? used in Article 16(1) will include termination of or removal from service, also.
19. It is now well settled that the expression ?matters relating to employment? used in Article 16(1) is not confined to initial matters prior to the act of employment, but comprehends all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment, such as, provisions as to salary, increments, leave, gratuity, pension, age of superannuation, promotion and even termination of employment. It is further well established that Articles 14, 15(1) and 16(1) form part of the same constitutional code of guarantees and supplement each other. If any authority is needed for the above enunciation, reference may be made to the observations made by Gajendragadkar, J., as he then was, in General Manager, Southern Railway v. Rangachari (AIR 1962 SC 36) (supra). "
(ii) Amita Vs. Union of India and another [2005 (13) SCC 721], wherein at paragraphs 11 and 12, it has been held as follows:
"11. Taking our findings, as made herein earlier to the extent that the writ petitioner was entitled to sit and write the examination for selection of Probationary Officer in the Bank, let us now proceed to consider whether the writ petitioner would be entitled to appointment in the post of Probationary Officer of the Bank in question, if successful in the written examination in view of the nature of the job to be performed as Probationary Officer. Before we deal with this aspect of the matter, we may take into consideration yet another aspect of the matter, namely, whether denial of permission to the writ petitioner to sit and write the examination for the post of Probationary Officer in the Bank offends Articles 14 and 16 of the Constitution. Article 14 of the Constitution guarantees to every citizen of India the right to equality before the law or the equal protection of law. The first expression ?equality before the law? which is taken from the English common law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. It also means that amongst the equals the law should be equal and should be equally administered and that likes should be treated alike. Thus, what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequals. Article 14 of the Constitution is both a negative and positive right. Negative in the sense that no one can be discriminated against: anybody and everyone should be treated as equals. The latter is the core and essence of the right to equality and the State has the obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled to as a human being. Therefore, Article 14 contemplates reasonableness in State action, the absence of which would entail the violation of Article 14 of the Constitution.
12. In our view, and in view of the discussions made herein earlier, in the facts and circumstance of this case, Article 14 was infringed for denial of permission to the petitioner to sit and write the examination for selection of Probationary Officers. As noted herein earlier, the writ petitioner was not allowed to sit for the competitive examination for the post of the Bank Probationary Officer on the ground that she was a visually impaired candidate although the advertisement in the newspaper did not disclose that a visually impaired candidate cannot be allowed to sit and write the examination as the nature and duty of the job were not suitable for the visually impaired candidate. It is not in dispute that the writ petitioner had qualified for the post of Bank Probationary Officer as per the advertisement. Statement has been made in the writ petition by the writ petitioner to the effect that the writ petitioner like other visually impaired persons can perfectly perform the job of a Probationary Officer. She also applied for the same post to BSRB and received her admit card for the same. Thus, there is discrimination by Respondent 2 between the writ petitioner and persons who are substantially in similar circumstances or conditions. Here the writ petitioner was not allowed to sit for the entrance examination and hence was discriminated against as regards the others who qualified for the same entrance examination. Therefore, the rejection of the application by the respondents besides the ground already stated herein earlier, was not on reasonable grounds and was arbitrary and violative of Article 14 which is a fundamental right of every citizen to be treated equally. In this connection, it is stated by the writ petitioner that a visually impaired lady Ms Nafisa is now functioning as a Probationary Officer in one of the branches of Central Bank of India situated at Bombay. Under Article 16 of the Constitution the general rule laid down is that there should be equal opportunity for citizens in matters relating to ?employment? or ?appointment to any office? under the State. The expression ?matter relating to employment or appointment? includes all matters in relation to employment both prior and subsequent to the employments which are incidental to the employment and form part of the terms and conditions of such employment. Therefore, under Article 16 of the Constitution what is guaranteed is equal opportunity to all persons. This clause accordingly does not prevent the State from laying down the requisite qualifications for recruitment to government service, and it is open to the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among government servants. Like other employers, the Government is also entitled to pick and choose from amongst a large number of candidates offering themselves for employment. But this can only be done on one condition, that all applicants must be given an equal opportunity along with others who qualify for the same post. The selection test must not be arbitrary and technical qualifications and standards should be prescribed where necessary. In this case, in our view, there is violation of the right of the writ petitioner under Article 16(1) which provides for the general rule, that there should be equal opportunity for citizens in matters relating to ?employment? or ?appointment to any office? under the State, matters incidental to employment both prior and subsequent to the employments which form part of the terms and conditions of such employment. In this case, the writ petitioner was in the first instance denied equal opportunity as given to other applicants from appearing in the entrance examination on the ground of disability which was not mentioned as a condition in the advertisement. That apart, the writ petitioner, although a visually impaired lady had not asked for any special favour for selection to the post of Probationary Officer. The writ petitioner without asking for any favour had only applied for writing the examination for selection not as a reserved handicapped candidate but along with general candidates who were allowed by the Board to sit and write the examination. Since the writ petitioner was similarly situated with other general candidates, and the writ petitioner had not asked for any advantage for being a visually impaired candidate, we failed to understand why she was not permitted to sit and write the examination for the post of Probationary Officer in the Bank."
(iii) Purnendu Mukhopadhyay and others Vs. V.K.Kapoor and another [2008 (14) SCC 403], wherein at paragraph 15, it has been held as follows:-
"15. In a case of this nature, in particular having regard to the fact that the respondents have granted similar benefits to others, we fail to understand as to how the decision of this Court in J.S. Parihar [1996 (6) SCC 291 : 1996 SCC (L&S) 1422] and Mittanlal [1997 (1) SCC 258 : 1997 SCC (L&S) 454] could be applicable. The State cannot treat employees similarly situated differently. It cannot implement the orders in relation to one and refuse to do so in relation to others. It is also not a case like J.S. Parihar [1996 (6) SCC 291 : 1996 SCC (L&S) 1422] where while implementing the orders, a particular stand has been taken by the employer giving rise to a subsequent cause of action. It is also not a case where the order of this Court is capable to two interpretations. (See State of Bihar v. Rani Sonabati Kumari [AIR 1961 SC 221], State of Kerala v. Unni [2007 (2) SCC 365] and Sneh Enterprises v. Commr. of Customs [2006 (7) SCC 714]."
(iv) Uttar Pradesh Power Corporation Limited vs. Ayodhya Prasad Mishra and another [2008 (10) SCC 139], wherein at paragraph 40, it has been held as under:
"40. It is well settled that equals cannot be treated unequally. But it is equally well settled that unequals cannot be treated equally. Treating of unequals as equals would as well offend the doctrine of equality enshrined in Articles 14 and 16 of the Constitution. The High Court was, therefore, right in holding that Executive Engineers placed in Category I must get priority and preference for promotion to the post of Superintendent Engineer over Executive Engineers found in Category II."
(v) Indian Hume Pipe Company Limited Vs. State of Rajasthan [2009 (10) SCC 187], wherein at paragraph 14, it has been held as under:
"14. It is also pertinent to mention here that the interest awarded by the learned District Judge and the learned Single Judge to the counterclaim of the respondent was not disturbed but it was set aside only for the appellant. If the appellant was not entitled to claim interest then how the respondent State would get powers or competence to receive it. Same doctrine should have been made applicable for the respondent?s case also. Two persons, similarly situated, could not have been treated differently as the same may amount to discrimination."
(vi) Vishundas Hundumal, etc., Vs. The State of M.P. and others [AIR 1981 SC 1636], wherein at paragraphs 3, 6 and 7, it has been held as under:
"3. The only contention that survives for our consideration is that while cancelling and/or curtailing certain permits for routes, parts of which overlapped with the notified routes there were other permit holders in the same class having stage carriage permits for certain routes parts of which were overlapping with the notified route and yet in the case of petitioners their permits were curtailed prohibiting them from operating their stage carriages on that portion of the route for which they had permit which was overlapping with the notified route while others in all 19 who, though similarly situated, were favourably treated by neither curtailing nor cancelling their permits and were permitted to ply their stage carriages on the routes for which they had permits passing over a portion of the notified route without any let or hindrance. The contention is that this is hostile discrimination by executive act without any valid criteria for picking and choosing and that the discrimination is so writ large on its face that the Corporation and the State Government did not try to justify the same before either the Special Secretary who heard the objections or the High Court and took convenient refuge under the plea of unconscious and unintentional discrimination through oversight relying upon Ramnath Verma v. State of Rajasthan [1963 (2) SCR 152: AIR 1967 SC 603]. Those 19 operators who received a favourable yet unjustified treatment are listed at p. 45 in Special Leave Petition No. 6150 of 1979. Neither the learned counsel for the Corporation nor Mr Gambhir for the State of Madhya Pradesh attempted to justify classification amongst operators holding stage carriage permits and plying vehicles on routes part of which was overlapping with the notified route.
6. Conceding that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the whole scheme. Such an approach would be destructive of a wholesome effort towards nationalisation of bus transport which is generally undertaken in public interest. When discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of citizen. In this case denial of equal protection is complained of. And this denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioners. We, therefore, propose to take a constructive approach by removing the discrimination by putting the present petitioners in the same class as those who have enjoyed favourable treatment by inadvertence on the part of the Regional Transport Authority.
7. Accordingly we hereby direct that the order/conditions in permits curtailing the permits of the petitioners prohibiting them from passing over the overlapping portion of their route with the notified route be quashed and declared to be of no consequence till all the operators including those excluded and similarly situated are similarly treated."
7. Per contra, learned Special Government Pleader appearing for the respondents contended that :
(a) the impugned order of the learned Judge is valid and legal and the learned Judge has correctly appreciated the materials on record and the previous proceedings;
(b) a reading of the earlier and the present contentions of the appellant clearly show that the appellant has not challenged the basic order and the subsequent writ petition is hit by principles of res judicata; and
(c) the charges were framed against the said Raja Rajendran domestic enquiry could not be held and the amounts could not be recovered from him, as he retired from service on 31.08.1995 on attaining the age of superannuation.
8. The learned Judge by an order, dated 24.09.2012, dismissed the writ petition on the ground that the appellant challenged the order of recovery in appeal. The appeal was rejected on 07.06.2002. The appellant filed O.A.No.4585 of 2002, which was renumbered as W.P.No.17305 of 2007. The said writ petition was finally dismissed. Pending writ petition, another order was passed upholding the charges by treating the appellant as Agricultural Officer. The charge memo was challenged in W.P.(MD) No.12443 of 2012. The learned Judge dismissed the writ petition holding that the charge memo was available at the time of filing the earlier writ petition. But, the appellant did not challenge the charge memo at that time. Hence, the writ petition is not maintainable on the ground of constructive res judicata and of delay and laches.
9. We have carefully perused the materials on record and considered the arguments of the learned Senior Counsel appearing for the appellant and the learned Special Government Pleader appearing for the respondents.
10. The relief sought by the appellant is to quash the charge memo dated 27.03.1998 and other consequential orders, which cannot be granted, as the respondents have completed the domestic enquiry. The Enquiry Officer has given a finding that the charges framed against the appellant have not been proved and the first respondent, who is the disciplinary authority, has differed with the findings of the Enquiry Officer. The first respondent has given reasons for differing with the findings of the Enquiry Officer in his Letter No.11/2000-47, dated 15.04.2005 and called upon the appellant to submit her explanation. The appellant instead of submitting her explanation, has initiated writ proceedings.
11. The domestic enquiry against the appellant had been completed finding that the charges levelled against her had not been proved. The first respondent, disciplinary authority had differed from the said finding by giving reasons and called upon the appellant to submit her explanation.
12. In view of the above, the appellant is directed to submit her explanation to Letter No.11/2000-47, dated 15.04.2005 of the first respondent, within a period of four weeks from the date of receipt of a copy of this Judgment, raising all the grounds available to her as per law and the first respondent is directed to consider the appellant's explanation and pass appropriate orders on merits and in accordance with law within a period of four weeks thereafter. Till final orders are passed by the first respondent on merits, the respondents are restrained from recovering any amount from the appellant.
With the above direction, the Writ Appeal is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
Index : yes (V.D.P.,J.)(V.M.V.,J.)
Internet : Yes 23.02.2015
smn2/abe
To
1. The Agricultural Production Commissioner/
Secretary to Government,
Agriculture (AA-2) Department,
Secretariat, Chennai - 9.
2. The Director of Agriculture,
Marketing & Commercial Commissioner,
Anna Nagar, Chennai - 40.
3. The Assistant Director of
Agriculture (Marketing),
Head Post Office Road,
Palayamkottai,
Tirunelveli - 2.
V.DHANAPALAN, J.
AND
V.M.VELUMANI, J.
smn2/abe
Pre-delivery Judgment in
W.A.(MD) No.913 of 2012
& M.P.(MD) Nos.2 of 2012 & 1 of 2013
Dated: 23.02.2015