Madras High Court
Aziz Ahmed vs The Government Of Tamil Nadu on 19 December, 2007
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.12.2007 CORAM : THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.28837 of 2005 Aziz Ahmed ... Petitioner vs. The Government of Tamil Nadu, rep. by its Chief Secretary, Public [Special-A] Department, Secretariat, Chennai 600 009. ... Respondent Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records pertaining to the impugned order passed by the respondent in G.O.(2-D) No.20 Public (Special-A) Department dated 04.07.2005 and quash the same and direct the respondent to pay all the service benefits including the monetary benefits. For Petitioner : Mr.M.Muthappan For Respondent : Mr.A.Edwin Prabakar O R D E R
Challenging the impugned order of the respondent dated 04.07.2005, the petitioner has filed this writ petition for a direction to the respondent to pay him all the service benefits including the monetary benefits.
2. Brief facts leading to the filing of the writ petition are, as under:
(a) The petitioner was appointed as a Junior Assistant in the Secretariat in the Agricultural Department in the year 1964. Later, he was promoted to higher posts, namely, Assistant Section Officer, Section Officer and Under Secretary in various departments of Secretariat. After completion of District Training successfully for a period of one year in Madurai District, the petitioner joined as Under Secretary (Mining) in the Industries Department, Secretariat on 01.02.1994. Later on, he was promoted as Deputy Secretary to Government and posted in the Industries Department in December 1995.
(b) While the petitioner was due to retire on 30.06.1996 on reaching the age of superannuation, to his shock and surprise, he was served with an order of suspension dated 18.06.1996 on the ground that an enquiry into grave charges was contemplated against him.
(c) According to the petitioner, he has rendered an unblemished service of nearly 32 years in various departments in the Secretariat and there is absolutely nothing against him which warranted disciplinary action so as to enable the Government to suspend him under the Rules. In O.A.No.4087 of 1996 filed by the petitioner, the Tamil Nadu Administrative Tribunal, by its order dated 24.04.1997 has set aside the order of suspension on the ground that the said order issued by the Government in G.O.Ms.No.614 Public (Special A) Department, dated 18.06.1996 cannot survive any further after 30.06.1996 and shall stand revoked. Pending the Original Application, the Government had framed a charge memo against the petitioner and appointed an Inquiring Officer to enquire into the alleged charges against him. But, consequent to the order of the Tribunal, dated 24.04.1997, the said charge memo became infructuous.
(d) Pursuant to the orders of the Tribunal dated 24.04.1997, the Government in Public Department, by its order dated 17.11.1997 revoked the impugned order of suspension, dated 18.06.1996 and allowed the petitioner to retire from service on superannuation on the afternoon of 30.06.1996 without imposing any condition whatsoever. Again to the shock and surprise of the petitioner, the Government issued two charge memos, as per (i) Letter No.3142/96-18 Public (Special-A) Department dated 19.11.1997 and (ii) Letter No.889/97-1, Public (Special-A) Department dated 28.11.1997. The charges as detailed in the charge memos are as under:
"Letter No.3142/96-18 Public (Special-A) Department dt.19.11.1997:
Charge 1: That you, Thiru Aziz Ahmed, while functioning as Deputy Secretary to Government, during the period 22.12.1996 to 18.06.1996, had caused the issue of orders leasing minor and major minerals in 35 cases dating from 21.03.1996 to 10.04.1996, during the period when the General Election 1996 process was on. You, being a Deputy Secretary to Government should have been well aware of the Model Code of Conduct and that no public interest was served by issuing those orders to benefit certain individuals with undue pecuniary gain. You should have waited till the election process was over. You did not even consider it necessary to submit the files relating to the above matters to the then Principal Secretary to Government, Industries Department before issue of orders, though all the Government orders were issued in the name of the Principal Secretary to Government.
Charge 2: That you, Thiru Aziz Ahmed, as Deputy Secretary to Government in charge of the subject mining during the aforesaid period had issued orders in 23 cases after recording in the files that the orders be issued immediately as desired by the (then) Minister for Industries. You should have obtained clear written orders from the Secretary concerned as to whether orders need to be issued then in view of the election process. In the alternative you should have obtained clearance from the Chief Electoral Officer, Public (Elections) Department, which you failed to do so with malafide intention and ulterior motive of hurrying up to issue of orders. Moreover, no written orders of the Minister had been obtained in any case. In certain cases, the originals of the Government orders granting mining leases were handed over to the individuals on the date of issue of orders itself as against the prescribed mode of despatch of Government correspondence. It is clear that you showed favouritism and had interest in helping those private lessees. Thus, you failed to safeguard the interest of the Government. This was in clear violation of Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973.
Letter No.889/97-1, Public (Special-A) Department dated 28.11.1997 :
Charge 1: That you, Thiru Aziz Ahmed, while functioning as Deputy Secretary, Industries Department had originated and put up a misleading circulation note on 03.05.1996 which was approved by the then Minister for Industries on 04.05.1996. You had also illegally and intentionally recommended to the Government of India on 06.05.1996 for the renewal of limestone lease to M/s.Loga Minerals and Chemicals, Salem, violating the procedures and suppressing certain facts. When the results of the General Elections 1996 were about to be declared, you, being a Deputy Secretary should have been well aware of the Election by recommending the renewal in question but caused undue pecuniary gain to the private individual, overruling the Commissioner of Geology and Mining's recommendation for rejection of the application for renewal after giving 60 days notice.
Charge No.2: That you, Thiru Aziz Ahmed, while you were a Deputy Secretary, Industries Department, had wilfully recommended to the Government of India for the renewal of limestone lease to M/s.Loga Minerals and Chemicals, Salem at the time when the General Elections 1996 results were to be announced and thereby caused undue pecuniary gain to private lease owner. You had shown undue favouritism to the individual. Thus, you had failed to safeguard the interest of the Government which was in clear violation of Rule 20 of the Tamil Nadu Government Servants Conduct Rules.
(e) It is the further case of the petitioner that the notification for General Election was announced on 19th March 1996 and the Election Commission had issued a letter stating that in all cases in which major auctions have to be held relating to matters of liquor vends, tender leaves, etc., they have to be put off till the last date of completion of election in the concerned areas. Pursuant to the same, the Government in the Industries Department had issued a U.O. note on 17.04.1996, requesting all the officers that in all cases where major auctions, tenders are to be held, they should be put off till the last date of completion of elections. According to the petitioner, he had not conducted any auction or tender in relation to any matter during the aforesaid period.
(f) In the letter to the Election Commission, it has been stated that in all cases in which major auctions have to be held relating to the matters of liquor vends, tender leaves, etc., they have to be put off till the last date of completion of election in the concerned area. Based on these instructions, the then Joint Secretary to the Government in Industries Department, through the un-official note dated 17.04.1996 requested all the officers in the Industries Department that in respect of all cases where major auctions, tenders were to be held they shall be put off till the last date of completion of the election. According to the petitioner, the former Principal Secretary to the Government had issued an order dated 11.04.1996 that in view of the election, all orders on mining leases should be issued only after the election process is over, even though there was no ban on the issue of such orders and hence, there had been no violation of the directives of the Election Commission or the Government in the matter. It is the case of the petitioner that in his letter dated 21.06.1996, he had not violated the Election Commission's directives dated 27.03.1996 in any manner by the issue of 35 G.Os. relating to mining grants, in accordance with the Rule as per the relevant statutory provisions and no orders were issued after 11.04.1996.
(g) The petitioner had submitted his detailed explanation in two letters dated 3/4.12.1997 and 21.01.1998, respectively, denying the charges. The charges were inquired into by the Inquiring Officer, namely, the then Secretary, Public Works Department and he submitted his reports for both the charges on 29.12.1998 and 23.12.1998, respectively. The Government communicated both the said reports of the Inquiring Authority to the petitioner on 23.01.1999 and 22.01.1999, respectively, and called for further representations from the petitioner. Accordingly, the petitioner submitted his further detailed representations to both the reports of the Inquiring Officer on 02.03.1999 and 04.03.1999, respectively.
(h) Thereafter, the Government issued a show cause notice to the petitioner on 09.06.1999 about the proposed punishment of 50% cut in pension per month for a period of 36 months for the proven charges, for which the petitioner submitted his detailed reply to the Government on 25.06.1999, stating that the Government has committed a breach of law by issue of show cause notice by the Secretary to Government Public [Special A] Department, who is not competent to do so. But, the Government later on suppressed the original show cause notice dated 09.06.1999 by issue of a fresh notice in the name of Chief Secretary to Government on 04.01.2000 after the petitioner brought out the serious lacuna in his letter dated 25.06.1999. Even then, the subsequent show cause notice issued in the name of Chief Secretary was also not valid in law as it was not signed by the Chief Secretary himself.
(i) After the submission of the detailed reply on 22.01.2000 followed by several representations from the petitioner as well as from his wife to the concerned authorities, no orders were passed and the orders regarding sanction of regular pension and other pensionary benefits including DCRG were issued by the respondent. Hence, the petitioner filed a writ petition in W.P.No.32282 of 2004 seeking a mandamus to direct the respondent to pass final orders on the enquiry conducted for the charge memos dated 19.11.2007 and 28.11.2007, respectively, without further loss of time and this Court, by its order, dated 05.11.2004, directed the respondent to pass orders within a period of 12 weeks from the date of receipt of a copy of its order. While so, the respondent has passed the impugned order in G.O.(2D) No.29 Public (Special-A) Department dated 04.07.2005 by confirming his proposed punishment without considering the provisions of the relevant Rules and imposed a penalty of 50% cut in the petitioner's pension per month for a period of 36 months. Aggrieved by the same, the petitioner has come before this Court with the aforesaid relief.
3. The respondent has filed a counter affidavit contending that:
(a) Serious irregularities committed by the petitioner were noticed during the month of June, 1996, and as it was not possible to complete the disciplinary proceedings before the date of his retirement on 30.06.1996, the Government has issued orders placing the petitioner under suspension from service under clause (e) of Rule 17 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules with immediate effect until further orders vide G.O.Ms.No.614, Public (Special A) Department, dated 18.06.1996. The petitioner had caused the issue of orders leasing minor and major minerals in 35 cases (new lessees) dating from 21.03.1996 to 10.04.1996. The press announcement of General Elections, 1996 was dated 19.03.1996. A formal notification of the election process was issued on 27.03.1996. The petitioner, being Deputy Secretary to Government, should have been well aware of the Model Code of Conduct. He had not discharged his duties properly or satisfactorily, upholding public interest but had discharged his duties conferring undue monetary gain to private mining lessees. As per the suspension order dated 18.06.1996, his suspension would continue to be in force, unless it is revoked.
(b) When the results of the General Elections 1996 were about to be declared, the petitioner has committed an irregular action in having recommended the limestone lease to Loga Minerals illegally and intentionally recommended to the Government of India on 06.05.1996, violating the procedures and suppressing the facts. Further, the petitioner had caused the issue of orders leasing minor and major Minerals in 35 cases dating from 21.03.1996 to 10.04.1996 during the period when General Elections, 1996 process was on when such leases should not have been issued. Since the petitioner had not obtained written orders of the Minister on the files and from the Secretary to Government and Chief Electoral Officer for the issue of orders, there is a clear violation of Model Code of Conduct of election.
(c) The provisions of the code of conduct and the instructions of the Election Commission are not only applicable to political parties, but it would be applicable to the Government Servants also. Hence, 28 orders issued between 27.03.1996 and 10.04.1996 were in contravention of the guidelines of the Election Commission of India. As regards the Government charge letter dated 28.11.2007, the Inquiring Authority, in his findings dated 23.12.1998 (Annexure-IV), concluded that it is seen from the records that the charged officer had caused the issue of orders leasing minor and major mining minerals in 28 cases during the period when the General Election process was on, held as proved.
(d) The Government Order sanctioning fresh mining leases had been issued after the publication of the notification for election. This being so, the petitioner suppressed the fact and sent a 'Nil' report to the Election Commission, which is a clear violation of the Election Commission's guidelines by the petitioner.
(e) The Government had issued orders, among others, that the petitioner is entitled to provisional pension with effect from 01.07.1996 as per rules vide G.O.(D) No.131, Public (Special. A) Department, dated 09.04.1998. As disciplinary action under Tamil Nadu Pension Rules was pursued against the petitioner, the question of sanction of Death cum Retirement Gratuity to him did not arise at that time. However, after obtaining the orders of the competent Authority, final orders in the disciplinary actions initiated against the petitioner have been issued vide G.O.(2D) No.29, Public (Special-A) Department, dated 04.07.2005.
(f) In respect of charge letter dated 28.11.1997, the Inquiry Officer, in his findings dated 23.12.1998, had recorded that undue favour was shown by the petitioner to Loga Minerals and Chemicals, Salem, thereby causing undue pecuniary gain to the applicant. The contention of the petitioner that the Inquiry Officer concluded that there is no evidence of any motive on the part of the petitioner to gain undue pecuniary advantage is not correct.
(g) The Inquiry Officer has recorded that the petitioner received the letters of the applicant on 25.03.1996 and 12.04.1996, he chose to submit the circulation note on 03.05.1996 marking the file to Minister (Industries) and writing to the Principal Secretary (on Casual Leave). Firstly, this was a routine case in which the petitioner should have waited from 12.04.1996 till 03.05.1996 for the return of Principal Secretary, from casual leave to circulate the proposal through the Principal Secretary. It is quite evident that the petitioner had shown undue urgency bypassing the Principal Secretary by choosing a date for circulating the file when the Principal Secretary was on casual leave. This shows that there was a mala fide intention on the part of the petitioner and as such, the charge is valid and sustainable in law.
(h) The contentions that whether there was proper application of mind by the concerned authorities and whether available material was placed to conclude that the petitioner has to be punished are wholly untenable and the punishment order dated 04.07.2005 is not perverse and therefore not liable to be quashed.
(i) With regard to the withholding of regular pension and DCRG, the respondent has stated that the question of sanction of DCRG did not arise at that time in view of the fact that charges issued to him contain an indication to heavy financial loss to Government.
(j) As regards the contention of the petitioner that the respondent has addressed the Tamil Nadu Public Service Commission for advice on 18.06.2002, the respondent has stated that they have addressed the Tamil Nadu Public Service Commission on 24.02.2000 itself and that the Government has processed his case in time and there is no wanton delay; only due to administrative reasons, final orders have been passed on 04.07.2005.
(k) While the representation/appeal made by the petitioner against the orders of the Government dated 04.07.2005 is pending before the Government, he chose to file the present writ petition; his appeal, dated 21.07.2005 was received by the Government on 15.09.2005. As per Rule 20(1) of Tamil Nadu Civil Services (Discipline & Appeal) Rules, it is a belated one and hence, the Government has rejected the appeal on 13.07.2006 as time barred and issued orders in G.O.(2D) No.128, Public (Special.A) Department, dated 13.07.2006 (Annexure IX).
4. Heard Mr.M.Muthappan, learned counsel for the petitioner and Mr.A.Edwin Prabakar, learned counsel for the respondent.
5. Learned counsel for the petitioner contended that the impugned order of the respondent is contrary to law and is in violation of the provisions of Tamil Nadu Pension Rules on the following grounds:
(i) In the first Charge Sheet, it is mentioned that the petitioner was functioning as Deputy Secretary to the Government during the period 22.12.1995 and 18.06.1996 and had caused the issue of orders leasing minor and major minerals in 35 cases dating from 21.03.1996 to 10.04.1996. Whereas, the petitioner was functioning as Deputy Secretary only from 27.12.1995, but not from 22.12.1995.
(ii) Under Rule 9(5) of Tamil Nadu Pension Rules, 1978, the recovery shall not be made at the rate not exceeding one-third of the Pension admissible on the date of retirement of a Government Servant even for the pecuniary loss to Government. By way of imposing penalty of 50% cut in pension per month for a period of 36 months, there is no pecuniary loss to the Government as held by the Inquiry Officer.
(iii) The guidelines of the Election Commission have been brought to the notice of the officers including the petitioner only on 11.04.1996 by an unofficial note by the then Joint Secretary to Government, Industries Department. Subsequently, official communication relating to the guidelines of the Election Commission was also communicated to the officers and the staff members in the Industries Department only on 17.04.1996 by the said Joint Secretary and those instructions were received by the officers including the petitioner only on 25.04.1996. Hence, during the period from 21.03.1996 to 10.04.1996 the guidelines of the election commission were neither brought to the notice of the officers including the petitioner nor to the staff members in Industries Department by the said Joint Secretary nor the then Principal Secretary minuted in the files in question to delay/wait till the completion of the election process.
(iv) The service records of the petitioner is very clean for entire service periods from April 1964 to June 1996. During the period, he was ranked 'good' to 'outstanding' and his capability has not been doubted throughout his service while confidential reports were written by his superiors. Merely because of allegations not supported by any evidence for the issue of 35 mining G.Os. limited to 28 by the Inquiry Officer and recommending the proposal to the Government of India for renewal of lime stone lease, the petitioner has been singled out in the sordid affairs.
(v) While imposing punishment of 50% cut in pension for a period of 36 months, no vital evidence has been taken into consideration on cognizance either by the Inquiry Officer or by the TNPSC or by the respondent. The action of the respondent to inflict the punishment of 50% cut in pension for 36 months, even though the petitioner is not at all responsible for the alleged charges levelled against him, is unjust and is against the principles of natural justice.
(vi) Though the petitioner had submitted his final replies to the show cause notices on 25.06.1999 and 04.01.2000, the respondent addressed the Tamil Nadu Public Service Commission for its views on the disciplinary case of the petitioner only on 18.06.2002, that too after inordinate delay of about 2 = years. On receipt of the views of the TNPSC on 08.10.2002, the respondent kept the matter in the cold storage till the receipt of the direction of this Court in W.P.No.32282 of 2004 to pass final orders on the disciplinary case of the petitioner. The respondent processed the case and passed final orders only on 04.07.2005 in imposing an unjust punishment to the petitioner of 50% cut in pension per month for a period of 36 months, that too after the expiry of the time limit fixed by this Court.
6. Learned counsel for the petitioner further contended that if the Death-cum-retirement Gratuity illegally withheld by the respondent since 01.07.1997 is not released, the petitioner will be put to undue hardship, mental agony and great loss.
7. In support of his contentions, learned counsel for the petitioner has relied on a decision reported in AIR 1983 SC 130 in the case of D.S.Nakara and others vs. Union of India, wherein, the Supreme Court has held as under:
49. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specified date, their pension would be computed afresh and would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectively. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended R.34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due to computation. The words "who were in service on 31st March, 1979 and retiring from service on or after that date" excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstances can be served without impairing the formula. Therefore, there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed."
8. Per contra, learned counsel for the respondent has put forth his contentions, as under:
(i) When the results of the General Elections 1996 were about to be declared, the petitioner has violated the procedures by recommending the limestone lease to Loga Minerals illegally and intentionally recommended to the Government of India on 06.05.1996, violating the procedures and suppressing the facts.
(ii) The provisions of the code of conduct and the instructions of Election Commission are not only applicable to political parties but they would also be applicable to the Government Servants. Hence, 28 orders issued by the petitioner between 27.03.1996 and 10.04.1996 were in contravention of the guidelines of the Election Commission of India.
(iii) The Government has passed final orders imposing the penalty of 50% cut per month in the pension of the petitioner for a period of 36 months for the proven charges, vide G.O.2(D) No.29, Public (Special.A) Department, dated 04.07.2005 only after following the procedures prescribed in the Tamil Nadu Civil Services (Discipline & Appeal) Rules and after getting the advice of the Tamil Nadu Public Service Commission and that the said order is wholly legal and sustainable in law.
(iv) The petitioner's contention that he is not aware of the Model Code of Conduct of General Elections cannot be acceptable for the reason that he had served in Government for more than 30 years in various capacities in the Secretariat.
(v) Even though the petitioner's service records are very clean as stated by him, that would not absolve him from the irregularities/violation of code of conduct committed by him.
(vi) The contention that whether there was proper application of mind by the concerned authorities and whether available material was placed to conclude that the petitioner has to be punished is wholly untenable and the punishment order dated 04.07.2005 is not perverse and therefore not liable to be quashed.
9. I have given due consideration to the facts and circumstances of the case and have perused the documents produced before this Court. I have also heard at length the arguments advanced by the learned counsel on either side.
10. The petitioner in this case was appointed as a Junior Assistant in the Secretariat in the Agricultural Department in the year 1964. Later, he was promoted to higher posts namely, Assistant Section Officer, Section Officer and Under Secretary in various departments of Secretariat. After completion of District Training for a period of one year, the petitioner joined as Under Secretary (Mining) in the Industries Department, Secretariat on 01.02.1994 and in December 1995, he was promoted as Deputy Secretary to Government and posted in the same department. Since December 1995, the petitioner has been working as Deputy Secretary. While the petitioner was due to retire on reaching the age of superannuation on 30.06.1996, he was served with an order of suspension on 18.06.1996, on the ground that an enquiry into grave charges was contemplated against him under Rule 17(e) of the Tamil Civil Services (Discipline & Appeal) Rules. Challenging the suspension order, the petitioner filed an Original Application in O.A.No.4087 of 1996 before the Tamil Nadu Administrative Tribunal and the Tribunal, by its order dated 24.04.1997 set aside the order of suspension on the ground that the said suspension order issued by the Government in G.O.Ms.No.614 Public (Special A) Department dated 18.06.1996 cannot survive any further after 30.06.1996 and shall stand revoked.
11. Pending the Original Application before the Tribunal, the Government had framed charge memo against the petitioner and appointed an Inquiring Officer to enquire into the alleged charges. However, based on the Tribunal's order dated 24.04.1997 setting aside the order of suspension, the charge memo framed by the Government became infructuous. Thereafter, based on the order of the Tribunal dated 24.04.1997, the Government in Public Department by order dated 17.11.1997 revoked the suspension order dated 18.06.1996 and allowed the petitioner to retire from service on superannuation on the after noon of 30.06.1996 without imposing any condition.
12. While so, the Government vide its Letter No.3142/96-18 (Special-A) Department dated 19.11.1997 framed two charges against the petitioner, which are as under:
Charge 1: That you, Thiru Aziz Ahmed, while functioning as Deputy Secretary to Government, during the period 22.12.1996 to 18.06.1996, had caused the issue of orders leasing minor and major minerals in 35 cases dating from 21.03.1996 to 10.04.1996, during the period when the General Election 1996 process was on. You, being a Deputy Secretary to Government should have been well aware of the Model Code of Conduct and that no public interest was served by issuing those orders to benefit certain individuals with undue pecuniary gain. You should have waited till the election process was over. You did not even consider it necessary to submit the files relating to the above matters to the then Principal Secretary to Government, Industries Department before issue of orders, though all the Government orders were issued in the name of the Principal Secretary to Government.
Charge 2: That you, Thiru Aziz Ahmed, as Deputy Secretary to Government in charge of the subject mining during the aforesaid period had issued orders in 23 cases after recording in the files that the orders be issued immediately as desired by the (then) Minister for Industries. You should have obtained clear written orders from the Secretary concerned as to whether orders need to be issued then in view of the election process. In the alternative you should have obtained clearance from the Chief Electoral Officer, Public (Elections) Department, which you failed to do so with malafide intention and ulterior motive of hurrying up to issue of orders. Moreover, no written orders of the Minister had been obtained in any case. In certain cases, the originals of the Government orders granting mining leases were handed over to the individuals on the date of issue of orders itself as against the prescribed mode of despatch of Government correspondence. It is clear that you showed favouritism and had interest in helping those private lessees. Thus, you failed to safeguard the interest of the Government. This was in clear violation of Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973. The Government also issued another charge memo to the petitioner vide its Letter No.889/97-1 Public (Special-A) Department, dated 28.11.1997, which reads as under:
Charge 1: That you, Thiru Aziz Ahmed, while functioning as Deputy Secretary, Industries Department had originated and put up a misleading circulation note on 03.05.1996 which was approved by the then Minister for Industries on 04.05.1996. You had also illegally and intentionally recommended to the Government of India on 06.05.1996 for the renewal of limestone lease to M/s.Loga Minerals and Chemicals, Salem, violating the procedures and suppressing certain facts. When the results of the General Elections 1996 were about to be declared, you, being a Deputy Secretary should have been well aware of the Election by recommending the renewal in question but caused undue pecuniary gain to the private individual, overruling the Commissioner of Geology and Mining's recommendation for rejection of the application for renewal after giving 60 days notice.
Charge No.2: That you, Thiru Aziz Ahmed, while you were a Deputy Secretary, Industries Department, had wilfully recommended to the Government of India for the renewal of limestone lease to M/s.Loga Minerals and Chemicals, Salem at the time when the General Elections 1996 results were to be announced and thereby caused undue pecuniary gain to private lease owner. You had shown undue favouritism to the individual. Thus, you had failed to safeguard the interest of the Government which was in clear violation of Rule 20 of the Tamil Nadu Government Servants Conduct Rules.
13. It is seen that the notification for General Election was announced on 19.03.1996 and the Election Commission had issued a letter stating that in all cases in which major auctions have to be held relating to matters of liquor vends, tender leaves, etc., they have to be put off till the last date of completion of election in the concerned areas and interim arrangements should be made where unavoidably necessary; since some of the auctions might result in unfair advantage/disadvantage to the party in power/others cannot be ignored; In this regard, the Government of Tamil Nadu, Industries Department had issued a notification dated 17.04.1996, requesting all the officers that in all cases where major auctions, tenders, etc. are to be held, they should be put off till the last date of completion of elections.
14. It is seen that the Election Commission of India, by its Circular dated 23.02.1996 and letter dated 22.03.1996, has sought to ban the following:
(a) Announce any financial grants in any form or promises thereof or
(b) Lay foundation stones etc., of projects or scheme of any kind or
(c) Make any promise of construction or road provisions or drinking water facilities or
(d) Make any adhoc appointment in Government, public undertaking etc.
(e) All cases where major such auction etc. are to be held, they should be put off till the last date of election and the State Government should make an interim arrangement where unavoidably necessary.
The above provisions of the code of conduct and the instructions of the Election Commission are only to ensure that there is fairness in the conduct of election.
15. It is further seen that on 11.04.1996, the former Principal Secretary to the Government had issued a order that in view of the election all orders on mining leases should be issued only after the election process is over. Then, on 28.05.1996, then new Secretary to the Government who had succeeded to the former Principal Secretary issued a letter stating that 35 Government Orders have been issued relating to sanctioning of mining leases and the same could have been issued only after the completion of the election process. In the above said circumstances, the petitioner has issued 35 Government Orders relating to the sanctioning of mining leases during the period 21.03.1996 and 10.04.1996. Thereafter, the issuance of 28 Government Orders by the Department was between 25.03.1996 and 10.04.1996 as per Business Rules. The impugned orders of suspension of the petitioner had been passed on 18.06.1996 prior to the receipt of the petitioner's explanation on 21.06.1996.
16. The petitioner submitted his detailed explanation in two letters dated 03/04.12.1997 and 21.01.1998, respectively, denying the charges. The charges were inquired into by the Inquiring Officer namely, the then Secretary, Public Works Department and he submitted his reports for both the charges on 29.12.1998 and 23.12.1998, respectively. The Government communicated both the said reports of the Inquiring Authority to the petitioner on 23.01.1999 and 22.01.1999, respectively and called for further representations from the petitioner. Pursuant to the above communications, the petitioner submitted his further detailed representations to both the reports of the Inquiring Officer on 02.03.1999 and 04.03.1999, respectively. Thereafter, a show cause notice was issued to the petitioner by the Government on 09.06.1999 about the proposed punishment of 50% cut in pension per month for a period of 36 months for the proven charges. Again, the petitioner submitted his explanation to the Government on 25.06.1999 questioning the competency of the authority. It is also seen that later on, the Chief Secretary to the Government issued a fresh notice on 04.01.2000.
17. Since no orders have been passed after the submission of the detailed reply on 22.01.2000 followed by several representations, the petitioner approached this Court in W.P.No.32282 of 2004 for a writ of mandamus directing the respondent to pass final orders on the enquiry conducted for the charge memos dated 19.11.1997 and 28.11.1997, respectively, and this Court, by its order dated 05.11.2004 directed the respondent to pass orders within a period of twelve weeks from the date of receipt of a copy of the order. Thereafter, the Government in G.O.(2D) No.29 Public (Special-A) Department dated 04.07.2005 confirmed the proposed punishment of the petitioner without considering the provision of the relevant Rules and imposed a penalty of 50% cut in the pension per month for a period of 36 months. Aggrieved by the said impugned order of the respondent, the petitioner has moved this Court seeking an efficacious remedy.
18. The points that arise for consideration in this petition are (i) whether the impugned order suffers from procedural irregularity, (ii) whether the impugned order is legally infirmed and (iii) whether the punishment imposed on the petitioner is shockingly disproportionate and to answer these points, the following issues in respect of framing of charges against the petitioner have to be decided.
19. Regarding the first issue as to whether the first issuance of 35 Government Orders by the petitioner relating to the sanction of mining leases is in accordance with law, it is contended that the petitioner was functioning as Deputy Secretary to the Government during the period 22.12.1995 and 18.06.1996 and he had caused the issue of orders leasing minor and major minerals in 35 cases from 21.03.1996 to 10.04.1996; whereas, the petitioner was functioning as Deputy Secretary only from 27.12.1995, but not from 22.12.1995; also the Enquiry Officer limited the cases in question to 28 Government Orders. On perusal of the material documents filed in support of this case, it is seen that the petitioner has stated that he has not violated any provisions of Law or Rules in performing his duties, but has issued 35 GOs dating from 21.03.1996 to 10.04.1996 as per the provisions in Secretariat Office Manual prescribed for the files returned from circulation. He claims that he was not aware of the facts that such orders should not be issued during those days when the General Elections 1996 process was on. The petitioner has also submitted that he had stopped the issuance of GOs soon after receiving the Election Commission's guidelines through his department.
20. A careful analysis of the material documents relevant to the first issue in question would reveal that the petitioner himself had written that the Minister (Industries) desired to issue the orders immediately. It is also seen that after recording the above remarks, he had not submitted any file to the then Principal Secretary. It is further seen that in some other cases, the original GOs granting mining leases were handed over to the individuals on the date of issue of the order itself as against the prescribed mode of despatch of Government correspondence. It is very clear from the records that on the very same day, orders have been issued. As a responsible officer to the Government and in the capacity of a Deputy Secretary to the Government, the petitioner is expected to obtain the approval of his superior as well as to inform the development of any sensitive/policy matters of the Government. The guidelines prescribed by the Election Commission of India are effective from the date of notification of Elections when the election process started. The notification of Elections was issued on 27.03.1996 and as such, the guidelines became effective from 27.03.1996 and the officer had no doubt about it. He ought to have sought clarification from the Chief Electoral Officer of the State, in case of any necessity to issue such Government Orders. It appears that the petitioner had acted in a hurried manner whether under the instructions of the concerned Minister or otherwise, under the excuse of non-receipt of formal communication in this regard from the department. But, this would not absolve the officer from the charge of misconduct. Therefore, the orders issued on or before 27.03.1996 alone were objectionable. On that basis, 28 GOs issued from 27.03.1996 to 10.04.1996 were in contravention of the guidelines of the Election Commission of India. Therefore, the Enquiry Officer has given a clear finding that the charges are proved in this regard and the issuance of orders leasing minor and major mining minerals in 28 cases during the period when the General Elections process was on, is in contravention of the guidelines of the Election Commission of India. Taking into consideration all these aspects and following the due procedures, the Disciplinary Authority imposed the punishment of 50% cut in pension per month for 36 months. In the absence of any procedural irregularity or any other legal infirmities vitiating the order of punishment, I do not find any reason to interfere with the impugned order of punishment in this regard. The first issue is answered accordingly.
21. With regard to the second issue i.e. whether the petitioner has put up a misleading circulation note on 03.05.1996 intentionally recommending to the Government of India for renewal of limestone lease to Loga Minerals and Chemicals in violation of the election Model Code of Conduct, it is seen that the Inquiry Officer, in his report, has stated that charges 1 and 2 framed by the Government in Letter No.889/97-1, Public (Special-A) Department dated 28.11.1997 relating to Loga Minerals as proved and whereas the charge No.1 framed in Government letter dated 19.11.1997 relating to issue of orders in leasing major and minor minerals in 35 cases during the process of General Elections 1996 as partly proved and charge no.2 as fully proved. Based on the Inquiry Officer's Report, the respondent has issued a show cause notice on 09.06.1999, stating that out of the four charges (two set of charges) framed under Rule 9 of the Tamil Nadu Pension Rules, 1978, three charges are held proved and one is partly proved.
22. Taking note of the charges framed against the petitioner, his explanation, findings of the Inquiry Officer in respect of charges framed in Government Letters dated 28.11.1997 and 19.11.1997, the further representation of the charged officer with reference to original records and on consultation with the Tamil Nadu Public Service Commission on the proposed imposition of punishment, the Government has confirmed the imposition of 50% cut in pension per month for a period of 36 months on the petitioner. Since the charges framed against the petitioner are proved, it is clear that the petitioner had put up a misleading circulation note on 03.05.1996 and has intentionally recommended to the Government of India for renewal of Limestone lease to Loga Minerals and Chemicals, Salem, violating the election Model Code of Conduct, thereby causing undue pecuniary gain to the private individuals.
23. There are four charges framed against the petitioner, out of which three charges are proved and one charge is partly proved. It is seen that the Enquiry Officer has recorded that the petitioner received the letters of the applicant on 25.03.1996 and 12.04.1996 and he chose to submit the circulation note on 03.05.1996 in writing to the Principal Secretary (on Casual Leave). It is also seen that this is a routine case in which the petitioner should have waited from 12.04.1996 till 03.05.1996 for the return of Principal Secretary, from casual leave to circulate the proposal through the Principal Secretary. It is quite evident that the petitioner had shown undue urgency bypassing the Principal Secretary by choosing a date for circulating the file when the Principal Secretary was on casual leave. This shows that there was a mala fide intention on the part of the petitioner to favour Loga Minerals and Chemicals, Salem and accordingly, the Enquiry Officer has given findings that the charges are proved and the Disciplinary Authority has also accepted his findings. In the absence of any procedural infirmity and the denial of reasonable opportunity, there is no scope to interfere with the findings of the Disciplinary Authority in this regard.
24. Regarding the third issue as to whether the petitioner has failed to safeguard the interest of the Government in violation of Rule 20 of the Tamil Nadu Government Servants (Conduct) Rules, it is seen that the petitioner had made a consistent plea that he is not the officer who has handed over the Government Orders to the individuals, but it is the other officers/staff of the department. Though the Enquiry Officer has assessed the case that there is no evidence on record that some of the GOs have been issued and handed over personally to the beneficiaries in contravention of the established rules and practices, there is no evidence to prove that the delinquent officer had handed over any of those orders directly to the beneficiaries. However, the urgency shown by the petitioner in issuing the GOs on the same day, which was displayed over by him in the file would go to show that he had acted against the interest of the Government. Therefore, the Enquiry Officer had a genuine reason to come to the conclusion and had the inference that the Government Orders might have been handed over physically by the charged officer's junior in the department with an instruction to hand over the orders whatsoever. Therefore, the urgency shown by the petitioner on the issue of GOs would reveal that he has failed to safeguard the interest of the Government.
25. It is not the petitioner's case that there are procedural irregularities and infirmities with regard to the respondent's approach in the application of the provisions and the denial of opportunity. This Court is not inclined to decide the quantum of punishment to the delinquent, in view of the repeated rulings of the Supreme Court as well as this Court that there is no case to interfere with the quantum of punishment, unless in extraordinary circumstances.
26. Taking note of the charges framed against the petitioner, the explanations submitted by him, the show cause notice and the findings of the Inquiry Officer with regard to the charges, the Tamil Nadu Public Service Commission in its Letter No.2280/DCD-F2/2000-1 dated 08.10.2002 has opined as follows:
"From the findings of the enquiry officer, it is clear that the delinquent officer has committed the irregularities and the Government have rightly accepted the findings of the enquiry officer and held that the charges framed against the delinquent officer as proved. On detail examination of the entire records connected to the disciplinary case, the Commission is of the view that there is no valid reason to interfere with the provisional conclusion arrived at by the Government in respect of the quantum of punishment to be imposed on the delinquent officer for the proven charges. Taking into account the facts and circumstances of the case, the Commission had decided to agree with the Government's provisional conclusion to impose a penalty cut of 50% from the delinquent officer's pension for 36 months and advises the Government accordingly which will meet the ends of justice."
27. In the case on hand, it is for the proven charges, the Disciplinary Authority, after careful consideration and independently examining the facts relevant to the case and on consultation with the Tamil Nadu Public Services Commission ,has decided and imposed the punishment of 50% cut in the monthly pension of the petitioner for a period of 36 months. Therefore, there is no warranting circumstance to interfere with the punishment imposed by the respondent in this count also.
28. Yet another contention raised by the petitioner is that as per Rule 9(5) of the Tamil Nadu Pension Rules, recovery from the pension of the whole or part of any pecuniary loss caused to the Government should not ordinarily be made at a rate exceeding 1/3rd of the gross pension originally sanctioned including any amount which may have been commuted. This point has been taken into consideration by the Disciplinary Authority as well as the Tamil Nadu Public Service Commission. The latter body, on a detailed examination of the entire records connected to the disciplinary case, has held that there is no valid reason to interfere with the provisional conclusion arrived at by the Government in respect of the quantum of punishment to be imposed on the delinquent officer for the proven charges. Taking into account the facts and circumstances of the case, I am of the firm view that the petitioner has not made out any case by properly pleading that the recovery of pension should not ordinarily be made at a rate exceeding 1/3rd of the gross pension originally sanctioned including any amount which may have been commuted and thus, when the Disciplinary Authority as well as the Tamil Nadu Public Service Commission have take due note of this aspect, there is no prima facie reason to interfere with the order impugned in this writ petition.
29. From the decision of the Supreme Court reported in AIR 1983 SC 130 in the case of D.S.Nakara and others vs. Union of India, relied on by the learned counsel for the petitioner, it is seen that the classification in revised pension formula between pensioners on the basis of date of retirement specified in memorandum, the beneficial part is retained and made applicable to all pensioners. Whereas, in the instant case, the amount of recovery from the petitioner is based on disciplinary proceedings. Therefore, the decision relied on by the learned counsel for the petitioner cannot be of any help to the petitioner in the present circumstance.
30. It is seen that out of the four charges framed against the petitioner, three charges were fully proved and one charge was partly proved. Initially, there was a suspension order and thereafter, charges were framed against the petitioner, charge memos issued and as per the disciplinary proceedings contemplated, an Inquiry Officer was appointed and findings on the framed charges given. In all the stages, the petitioner was given an opportunity to submit his explanations. It is also seen that the petitioner has submitted his explanation in a detailed manner and thereafter, the Tamil Nadu Public Service Commission has been consulted and the Disciplinary Authority, on a careful consideration of the facts and the findings of the Inquiry Authority, has taken an independent decision of imposing 50% cut in the pension of the petitioner per month for 36 months in a manner known to law.
V.DHANAPALAN,J.
abe Taking note of the overall circumstances and in the absence of any infirmity, this Court does not find any reason whatsoever to interfere with the order of the Disciplinary Authority impugned in this writ petition. The writ petition deserves no merit and is liable to be dismissed. Accordingly, the writ petition is dismissed. No costs. Consequently, connected M.P.Nos.31495 and 31496 of 2005 are closed.
19.12.2007 abe Index: Yes/No Internet: Yes/No Copy to:
The Chief Secretary, Government of Tamil Nadu, Public [Special-A] Department, Secretariat, Chennai 600 009.
Pre-delivery order inW.P.No.28837 of 2005