Madras High Court
M.Muthuraj vs The State Rep. By The on 20 November, 2012
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/11/2012 CORAM THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU W.P(MD)No.10199 of 2007 and M.P.(MD)No.1 of 2007 M.Muthuraj .. Petitioner Vs 1.The State rep. by the Secretary to Government, Home Department, St. George Fort, Chennai. 2.The Director General of Police, Santhome, Chennai. 3.The Additional Director General of Police, Law and Order, Chennai - 4. 4.The Deputy Inspector General of Police, Dindigul Range, Dingigul. 5.The Deputy Inspector General of Police, Ramanathapuram Range, Ramanathapuram. .. Respondents PRAYER Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records relating to the impugned order passed by the first respondent in his proceedings G.O(2D)No.516 dated 04.09.2006 confirming the order passed by the second respondent in his proceedings R.C.No.166940/API(3)2005 dated 16.09.2005 confirming the order passed by the third respondent in his proceedings Rc.No.099063/AP I(3)/2005 dated 15.07.2005 confirming the order passed by the fourth respondent in his proceedings C.NO.A2/P.R.11/2004 U/r.3(b) of TNPSS (D & A) Rules dated 05.01.2005 and quash the same as illegal. !For petitioner .. Mr.M.Ajmalkhan ^For Respondents .. Mr.S.Bharathi G.A. :ORDER
The petitioner filed this writ petition challenging the order of punishment confirmed by all authorities.
2. The following are the short facts for proper understanding of the case of the petitioner:-
The fourth respondent through his proceedings, dated 05.01.2005, imposed a punishment on the petitioner of reduction in the time scale of pay by one stage for one year with cumulative effect. The said order of the fourth respondent, who is the disciplinary authority, was challenged by the petitioner before the third respondent, by way of an appeal. The same was rejected by an order, dated 15.07.2005, and further revision filed before the second respondent also met with the same result. The review before the first respondent also was rejected by an order, dated 04.09.2006. Thus, the petitioner is before this Court challenging the above said proceedings of the respondents 1 to 4.
3. The case of the petitioner is that he is working as a Inspector of Police, Vigilance and Anti-Corruption at Theni. When he was working as Sub- Inspector of Police at Sayalkudi Police Station, Ramanathapuram District, the fifth respondent issued a charge memo by contending that there was a dereliction of duty on the part of the petitioner in conducting an enquiry with regard to passport applications and thereby causing for issuance of passport based on certain forged documents. The said charge memo, dated 06.05.2003, was subsequently enquired into by appointing the Additional Superintendent of Police, Ramanathapuram as Enquiry Officer. Pursuant to the enquiry conducted, the Enquiry Officer found the charges levelled against the petitioner as proved. Thereafter, the petitioner was issued with a show-cause notice on 26.10.2004 calling upon him to show-cause as to why the enquiry report should not be accepted. The petitioner submitted his explanation and the fourth respondent, not being satisfied with his explanation, had passed the order of punishment, imposing reduction in the time scale of pay by one stage for one year with cumulative effect by order, dated 03.01.2005.
4. A counter affidavit is filed by the respondents, wherein, the impugned orders passed against the petitioner were justified, by stating that the punishment was imposed on the petitioner only after holding a proper enquiry.
5. The learned counsel appearing for the petitioner contended that the disciplinary authority while passing the order of punishment, dated 03.01.2005, has simply accepted the enquiry report and imposed the punishment mechanically, without applying his mind independently and also without giving any specific finding with regard to the charges levelled against the petitioner.
6. In support of his contention the learned counsel relied on a decision of this Court reported in 2012(2) LLN 795 (Mad.) in the case of G.Jayakumar v. The Joint Registrar of Co-operative Societies.
7. Further, he also contended that when the petitioner had filed statutory appeal and revision before the appellate authority as well as revisional authority, the said authorities have also passed the non-speaking orders, without any discussion on the facts and circumstances and thereby indicating their non-application of mind. Likewise, the review filed before the first respondent Government was also rejected in total non-application of mind, except by mechanically stating that the petitioner has not put forth any valid point for consideration.
8.In support of such contention, the learned counsel relied on the decisions of the Hon'ble Supreme Court reported in 2008(2) MLJ 1018 (SC) in the case of Divisional Forest Officer, Kothagudem and others v. Madhusudhan Rao and a Division Bench of this Court reported in (2008)5 MLJ 1545 (Mad-NOC) in the case of Joint Commissioner of Police vs. Anandan.
9. Per contra, the learned Government Advocate appearing for the respondents submitted that the petitioner has not specifically raised the point with regard to non-application of mind in the affidavit filed in support of this writ petition and it is being taken as a ground first time while arguing the matter. Moreover, the learned Government Advocate pointed out that the charges levelled against the petitioner are serious in nature and because of the dereliction of duty on the part of the petitioner, it had resulted in issuing passport to certain persons, based on forged documents. According to the learned Government Advocate, the enquiry was properly conducted and the Enquiry Officer also found the charges levelled against the petitioner as proved. Therefore, the punishment imposed on the petitioner by the disciplinary authority as confirmed by the appellate authority as well as revisional and review authority, do not warrant any interference by this Court.
10. I have heard the learned counsel appearing for the petitioner as well as the learned Government Advocate appearing for the respondents and perused the materials available on record.
11. The petitioner was issued with a charge memo on 06.05.2003, which reads as follows:-
"tprhuizf;fhf tug;bgw;w 4 btspehl;L flt[r;rPl;L BfhUk; tpz;zg;gA;fspd; kPjhd tprhuizia chpa Kfthpapy; Kiwahft[k;, KGikahft[k; tprhuiz bra;ahJ. tpz;zg;gA;fspy; Fwpg;gpl;l Kfthpapy; rk;ke;jg;gl;l egh;fs; ny;yhj r{H;epiyapy; nUg;gjhf flt[r;rPl;L tprhuizg;gotj;jpy; bgha;ahd rhd;W tHA;fp, Bghypahd Kfthp kw;Wk; bgha;ahd MtzA;fs; bfhLj;jth;fSf;F flt[r;rPl;L tHA;fg;gl fhuzkhf nUe;j flik jtwpa fz;of;fj;jf;f bray;"
12. An enquiry was conducted and the Enquiry Officer submitted a report on 24.11.2004. The enquiry report filed before this Court in the additional typed set of papers reveals that the petitioner had denied the charges and given a detailed explanation as to why the petitioner should not be held responsible for the lapses said to have been committed. No doubt, the Enquiry Officer had found the charges levelled against the petitioner as proved, after considering the explanation submitted by the petitioner. However, the fourth respondent, being the disciplinary authority, before passing an order of punishment on the petitioner, is expected to apply his mind independently on the facts and circumstances of the case and come to a conclusion as to whether the findings of the Enquiry Officer are acceptable or not. On the other hand, the fourth respondent had mechanically passed the order of punishment, dated 03.01.2005, by simply stating that he agreed with the finding of the Enquiry Officer and consequently imposed the punishment. No doubt, the fourth respondent had also stated that he had carefully gone through the C.R. file minutes and further written statement of defence. But, such one line statement is not sufficient without there being any discussion to show his independent application of mind on the facts and circumstances of the case. Absolutely, there is no discussion whatsoever in the order passed by the fourth respondent. Thus, such a non- speaking order exhibiting total non-application of mind of the disciplinary authority cannot be sustained.
13. At this juncture, the following decision relied on by the learned counsel appearing for the petitioner reported in 2012(2) LLN 795 in the case of G.Jayakumar v. The Joint Registrar of Co-operative Societies at paragraph 15 is relevant to be quoted in support of my above view.
"15. To examine the veracity and legality of the above orders passed by the Respondents, it is to be seen that a clear circumspection of the case would reveal that the impugned orders passed by the First and Third Respondent are a mere extraction of the Enquiry Officer's Report and the same are also without any discussion on the part of the Respondents and had been passed mechanically, without giving an independent findings. Though the Enquiry Officer's Report had been placed before the Disciplinary Authority, yet each and every charge levelled against the Petitioner-delinquent have not been discussed in detail by them. The charges have not been dealt with by the Disciplinary Authority ' in toto' and the findings of the Enquiry Officer, have not been analysed, and ultimately, the First Respondent has come to the conclusion that 13 out of 23 charges having been proved, is a major factor to be taken into account before passing the order of punishment and without giving their own reasonings by passing a speaking order, orders have been passed by the Respondents in a casual way. In 'stricto-sensu', it is the hallmark and ordained principle in the service law jurisprudence that the Disciplinary Authority, while dealing with the punishment, ought to have assigned appropriate reasonings, which is the heart-beat of the decision as may be rendered while arriving at a final conclusion in the Disciplinary proceedings. such reasonings should be supported by material documents, and the authorities have to apply their mind in respect of each and every charge, so as to arrive at a conclusion either to accept the report of the Enquiry Officer or to reject the same by giving valid reasons, and only then appropriate punishment should have been imposed. Similarly, the Appellate/Revisional Authority should also deal with the matter in the manner as prescribed under the statutes/Rules, etc."
14. Therefore, the order passed by the fourth respondent without independent application of mind to the facts and circumstances of the case cannot be sustained. When the petitioner filed an appeal before the third respondent, he also confirmed the order of the disciplinary authority, by simply stating that after applying his mind and also going through the petition and connected records, he had come to the conclusion that the delinquency committed by the petitioner is proved on evidence and that punishment awarded is commensurate. Further Revision filed before the second respondent also met with the same result. The revisional authority in his proceedings, dated 16.09.2005, simply stated that the punishment awarded to the petitioner is appropriate.
15. Further review before the first respondent also met with the same result, wherein also, it is stated that the petitioner had not put forth any valid point for consideration. When all the proceedings of the appellate, revisional and review authorities are perused, it again shows that they have also mechanical approached to the case of the petitioner without realising that they are required to apply their mind independently, to the facts and circumstances of the case, by passing a speaking order. It is needless to say that the appellate authority also being a fact finding authority, is bound to go into the merits of the matter in detail, based on the contention raised by the appellant. A perusal of those orders of the appellate, revisional and review authorities amply shows their non-application of mind as well as their mechanical approach in exercising their statutory duties.
16. At this juncture, it is useful to refer to the decision of the Hon'ble Division Bench reported in 2008(5) MLJ 1545 in the case of Joint Commissioner of Police vs. Anandan, wherein, it is observed that if the order of the appellate authority merely stated that he has gone through the representation of the employee, minutes and order passed by the punishing authority and dismissed the appeal, it would be a non-speaking order and would not be sustained.
17. Even a reading of Rule 6 of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, contemplating the procedure for disposal of the appeal by the appellate authority, would disclose that the appellate authority shall consider as to whether the facts on which the order was based have been established; whether the facts established show sufficient ground for taking action and whether the penalty is excessive, adequate or inadequate. After making such consideration only, the appellate authority is bound to pass an order on appeal, either confirming or enhancing or reducing or setting aside the penalty or remitting the case to the authority, who imposed the penalty. In this case, as discussed above, none of the above procedures was followed by the appellate authority. As the order passed by the appellate authority as well as revisional authority and review authority does not disclose independent application of the mind, I find that those authorities have not discharged their statutory functions in a proper manner.
18. In support of my above finding, I follow the decision of the Hon'ble Supreme Court reported in 2008(2) MLJ 1018 in the case of Divisional Forest Officer, Kothagudem and others v. Madhusudhan Rao, and the findings therein at paragraphs 18 and 19 which are as follows:-
18. Having considered the submissions made on behalf of the respective parties and also having regard to the detailed manner in which the Andhra Pradesh Administrative Tribunal had dealt with the matter, including the explanation given regarding the disbursement of the money received by the respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court. No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting the appeal preferred by the respondent. A similar duty was cast on the revisional authority being the highest authority in the Department of Forests in the State. Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case as made out by the respondent herein and simply endorsed the punishment of dismissal though reducing it to removal from service.
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 at least 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.
19. Considering the law laid down by the Hon'ble Supreme Court as well as this Hon'ble Court in the decisions discussed above any by applying those decisions to the facts and circumstances of the case, I allow the writ petition and set aside the order of the respondents 1 to 4 and consequently, remit the matter back to the fourth respondent to pass a fresh order on merits and in accordance with law, after considering the facts and circumstances of the case in detail, by independent application of his mind. The said exercise shall be done by the fourth respondent within a period of eight weeks from the date of receipt of a copy of this order.
With the above directions, the writ petition is allowed. Consequently, the connected miscellaneous petition is closed. No costs.
skn TO
1.The Secretary to Government, Home Department, St. George Fort, Chennai.
2.The Director General of Police, Santhome, Chennai.
3.The Additional Director General of Police, Law and Order, Chennai - 4.
4.The Deputy Inspector General of Police, Dindigul Range, Dingigul.
5.The Deputy Inspector General of Police, Ramanathapuram Range, Ramanathapuram