Madras High Court
R. Viswanathan vs The Secretary To Government on 27 January, 2021
Author: R. Suresh Kumar
Bench: R. Suresh Kumar
W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2021
CORAM
THE HONOURABLE MR.JUSTICE R. SURESH KUMAR
W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014
and
W.M.P. Nos. 1 and 2 of 2014
R. Viswanathan ... Petitioner
in both W.Ps
-vs-
1. The Secretary to Government,
Food Co-operation and Consumer Protection Department,
Chennai - 9.
2. The Registrar of Co-operative Societies,
170, E.V.R. Periyar Road,
Kilpauk, Chennai - 10. ... Respondents
in both W.Ps
PRAYER in W.P. No. 12435 of 2007: Writ Petition filed under Article
226 of the Constitution of India, praying for issuance of Writ of
Mandamus directing the respondents to include the name of the
petitioner in the panel for the year 2000-2001 for promotion to the post
of Joint Registrar of Co-operative Societies published by the first
respondent in G.O.Ms.No.341 Co-operation Food and Consumer
Protection Department dated 28.09.2001 and promote the petitioner as
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W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014
Joint Registrar of Co-operative Societies retrospectively in accordance
with his seniority with monetary benefits and other consequential service
benefits.
PRAYER in W.P. No. 26825 of 2014: Writ Petition filed under Article
226 of the Constitution of India, praying for issuance of Writ of
Certiorarified Mandamus calling for the records in pursuant to the
impugned order passed by the first respondent in G.O.(D) No.284
Co-operation, Food and Consumer Protection Department dated
05.08.2011 and the impugned proceedings of the second respondent in
Na.Ka.25956/2012.O.Na.3 dated 18.05.2012 and the impugned letter
issued by the first respondent in Letter No. 26400/CD2/2011-6, dated
19.08.2013 and quash these orders and consequently direct the
respondents to grant Special Grade Pay in the post of Co-operative
Sub Registrar from the year 1998 and to grant revised scale of pay in the
post of Deputy Registrar of Co-operative Societies and grant notional
promotion to the post of Joint Registrar of Co-operative Societies and
pay the arrears in the revised scale with all consequential service
benefits.
For Petitioner
in both W.Ps : Ms.Swadhi Subramaniam
For Respondents : Mr.L.P.Shanmugasundaram
in both W.Ps Special Government Pleader
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W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014
COMMON ORDER
The short facts, lead to file these two cases, which are required to be noticed are as follows:
(i) That against the petitioner, there was a disciplinary proceeding, pursuant to which, a punishment was awarded against him by the first respondent, vide his order dated 08.08.1997, inflicting the punishment of withholding of increment for three years without cumulative effect. As against the said order of punishment, appeal was filed by the petitioner which was decided by the Appellate Authority, by its order dated 03.12.1997, where the punishment was reduced to two years withholding of increment without cumulative effect. Still not satisfied with said reduced punishment and in fact on some technical reasons, once again, second time appeal before the same Appellate Authority was filed by the petitioner, however that was rejected by the Appellate Authority, by its order dated 28.07.1998.
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(ii) As against the said rejection order passed by the Appellate Authority dated 28.07.1998, the petitioner filed Original Application in O.A. No. 4257 of 2002 before the Tamil Nadu Administrative Tribunal, which was subsequently stood transferred to this Court and renumbered as W.P. No. 32149 of 2005. In the said Writ Petition, final order was passed by this Court on 31.01.2006, whereby the punishment awarded against the petitioner was set aside, of course on technical reasons, therefore, it was remanded back to the respondents for reconsideration, of course on the basis of the Pension Rule.
(iii) The reason for directing the respondents to proceed against the petitioner under the Pension Rule is that, in the meanwhile, i.e., during the pendency of W.P. No. 32149 of 2005, the petitioner superannuated and retired from service on 31.03.2005.
(iv) Pursuant to the said order of this Court, fresh notice was issued on 04.11.2006, proposing to impose the punishment of stoppage of increment for six months, that was also challenged by the petitioner in 4/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 W.P. No. 6045 of 2007, where, this Court passed an order, setting aside the punishment of imposing six months of stoppage of increment and further liberty was granted to the first respondent to proceed against the petitioner under the Pension Rule. Only, pursuant to the said order, passed in W.P. No. 6045 of 2007, by order dated 06.07.2011, the present impugned order in W.P. No. 26825 of 2014 dated 19.08.2013 has been issued by the first respondent / State Government, where they proposed to impose a punishment against the petitioner by cut of Rs.500/- from the monthly pensionary benefits of the petitioner. Aggrieved over the same, the Writ Petition in W.P. No. 26825 of 2014 was filed.
(v) In the meanwhile, since the punishment awarded against the petitioner originally shall not stand in the way in view of the reduced punishment, for including him in the panel fit for promotion as Joint Registrar of Co-operative Societies for the year 2000-2001, however, in the approved panel issued by the respondents on 28.09.2001 the name of the petitioner was not found place, because of the punishment awarded against the petitioner. Therefore, in order to seek direction from the 5/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 Court of law to include his name in the panel fit for promotion as Joint Registrar of Co-operative Societies for the panel year 2000-2001, the petitioner also filed Original Application before the Tribunal in O.A. No. 6439 of 2002 and that OA stood transferred to this Court and renumbered as W.P. No. 12435 of 2007. That is why both the Writ Petitions filed by the petitioner were clubbed together and were taken up for hearing jointly today and are disposed of by this Common order.
2. Ms.Swadhi Subramaniam, learned counsel appearing for the petitioner would straight away take this Court to the findings given by the Enquiry Officer at the first instance, where the Enquiry Officer in his report dated 10.06.1997 has stated the following:
"nkw;go Fw;w tHf;F rk;ge;jg;gl;l fld; bjhif KGtJk; tNyhfp cs;sJ bjupatUfpwJ/ ,f;fld;
bjhlu;ghf jz;lf;fld; tHf;Fk; Mj;J}u; ruf Jizg;gjpthsuhy; 15/05/1995 y; Kot[ bgw;W jPu;g;ghfp cs;sJk; bjupatUfpwJ/ nkw;go fld;fs; midj;Jk;
tNypff; g;gl rl;lg;g{u;t eltof;if nkw;bfhs;sg;gl;L eltof;if bjhlu;e;J tUfpwJ/ vdnt.
,f;Fw;wr;rhl;Lg;go epjpapHg;g[ vd;fpw Fw;wr;rhl;Lf;F 6/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 jw;nghJ ,lk; Vw;gltpy;iy vd;gJ fz;lawpag;gLfpwJ/ Kiwnflhf tH';fg;gl;Ls;s xU flDf;fhf Fw;w tHf;F fhty; g[ydha;tpy; ,Ue;J tUtjhYk; mf;Fw;w tHf;fpy; 5tJ eguhf ,f;Fw;wr;rhl;ow;F Mshfpa[ss ;
jpU/Mu;/tp!t
; ehjd; cs;shu; vd;gjhYk; fpupkpdpy;
tHf;Ff;F mog;gil Mjhukhf cs;sJ nghyp
Mtdj;jpwF
; k; ,tUf;Fk; rk;ge;jk; ,Ug;gjhf
bjupatpyi
; y vd;gjhYk; ,e;jf; Fw;wr;rhl;L vd;/
rhl;Liu vd;/2 KGikahft[k; jpUg;jpfukhft[k;
epUg: pf;fg;gltpy;iy vd;gnj fz;lwpag;gLfpwJ/
xUntis fhty; g[ydha;tpy; ,Ue;J tUk; Fw;w
tHf;fpy; jpU/Mu;/tp!;tehjd; Tl;Lwt[ rhu;gjpthsu;
ePjpkd;w jPu;gg; pdg; o jz;lid bgWfpd;w epiyik Vw;gLkhdhy; ,f;Fw;wr;rhl;oy; rhl;Liuia g[Jg;gpj;J kPzL ; k; Fw;wf;Fwpg;ghiz tH';fp jpU/Mu;/tp!;tehjd;
jz;of;Fk; tha;g;gk[ ; cs;sJ vd;gjhy;
,f;Fw;wr;rhl;oypUe;J jpU/Mu;/tp!;tehjid tpLf;f
epahak; cs;sJ vd;gJ bgwg;gLfpwJ/"
3. By relying upon the said findings given by the Enquiry Officer, the learned counsel appearing for the petitioner would canvass the point that, after full-fledged enquiry, though the Enquiry Officer has come to 7/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 the conclusion that, the charges framed against the petitioner has not been proved, as there has been no loss to the society or the department, only the Disciplinary Authority not concurring on the findings given by the Enquiry Officer, has come to the conclusion on his own that, the charges framed against the petitioner has been proved and accordingly, the Disciplinary Authority intended to impose the punishment, of course the reduced punishment and in this context only, two times attempt has been made to send a show cause notice intending the proposed punishment to be inflicted on the petitioner and in both occasions, that was challenged before this Court and insofar as the first round of litigation i.e., W.P. No. 32149 of 2005 is concerned, by order dated 31.01.2006, the order passed by the Appellate Authority was set aside and in the second round of litigation i.e., in W.P. No. 6045 of 2007, by order dated 06.07.2007, the notice issued by the Disciplinary Authority dated 04.11.2006 imposing the proposed punishment of stoppage of increment of six months was set aside, ofcourse with the liberty to the respondents to proceed against the petitioner under the relevant provision of the Pension Rule.
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4. By stating these developments, the learned counsel would enlarge her arguments and stated that, after two round of litigations, the present impugned notice dated 19.08.2013 was issued by the respondents, where, it is stated that, the Government has come to the conclusion that, the charges framed against the petitioner has been proved and accordingly, they intended to impose the punishment of cut of Rs.500/- on monthly pension of the petitioner. In this context, the learned counsel appearing for the petitioner would submit that, absolutely, there is no discussion whatsoever to state that, on what basis, the Government has come to the conclusion that, the charges have been proved against the petitioner. Without any discussion and without any comparison, as to the charges as well as the explanation given by the petitioner vis-a-viz, the observation made and conclusion arrived at by the Enquiry Officer, on what basis, the Government has not concurred with the view expressed by the Enquiry Officer and has come to this conclusion that, the charges framed against the petitioner has been proved, has not been spelt out in the impugned notice. Therefore, for all these reasons, the impugned order cannot be sustained. 9/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014
5. Moreover, the learned counsel appearing for the petitioner would also submit that, the petitioner retired long back i.e., in the year 2005 and thereafter, there has been series of proceedings against the petitioner targeting him without considering his age and position that, he is only a retired employee, despite the fact that, the Enquiry Officer has categorically stated by making necessary observations in the Enquiry Officer report that, the charges framed against the petitioner cannot be said to be proved.
6. When that being so, the present impugned order is without any basis and therefore, the same cannot be sustained and accordingly it is liable to be interfered with and set aside, she contended. She would also submit that, once the impugned order goes and there is no punishment against the petitioner to include his name in the panel for the year 2000- 2001 as claimed in the 2007 Writ Petition with all service benefits, that can be very well given to the petitioner notionally for the purpose of continuous pensionable benefits and accordingly pension may be directed to be paid to the petitioner.
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7. Per contra, the learned Special Government Pleader submits that, though the Enquiry Officer has given observation stating that, the charges framed against the petitioner were not proved, it does not mean that the Disciplinary Authority has to concur with the views expressed by the enquiry officer. In this regard, the law is well settled, it is for the Disciplinary Authority to either accept the view expressed by the Enquiry Officer or to differ with the same and in order to differ with the view expressed by the Enquiry Officer, based on which, fresh notice has to be given, where after hearing the delinquent by way of defence or explanation, the Disciplinary Authority has to give its findings on the issue and can impose any punishment as per the service regulation, provided, if the charges framed against the delinquent are proved.
8. In this context, though two times attempt has been made to make fresh notice, intending to propose a very minimum punishment of stoppage of increment for six months, that was also challenged by the petitioner, however, this Court has not set aside the show cause notice on merits and in fact, the Court has permitted the respondents to proceed 11/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 against the petitioner under Pension Rule. Accordingly, by invoking Rule 9 of the Tamil Nadu Pension Rules, 1978, where, it gives the power and authority to the Disciplinary Authority as well as the Appellate Authority to proceed against the delinquent, even though, the delinquent superannuated or retired from service, the present impugned notice was issued.
9. Here in the case in hand, according to the learned Special Government Pleader, based on the documents available before the authority concerned, the charges framed against the petitioner appears to have been proved and therefore, only on that basis, now the impugned show cause notice has been issued, stating the intention and proposal of the respondents i.e., State Government to impose the very minimum punishment of cut of Rs.500/- only from the monthly pension of the petitioner, for which, the evidential reasons would be given after getting the defence or explanation to be submitted by the petitioner. Without choosing to give such explanation, since the petitioner has rushed to the Court only against the show cause notice, this Writ Petition cannot be 12/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 maintained and the prayer sought for herein cannot be sustained and therefore, on that ground, this Writ Petition i.e., W.P. No. 26825 of 2014 is liable to be dismissed. Consequently, the other Writ Petition also may be dismissed, the learned Special Government Pleader contended.
10. I have considered the said rival submissions made by the learned counsel appearing for both sides and have perused the materials placed before this Court.
11. Insofar as the factual matrix is concerned, the dates and events as has been narrated herein above are not in dispute.
12. Now, the issue is that, only pursuant to the remand order made or liberty given to the respondents i.e., State, to proceed against the petitioner under Pension Rules, now the impugned show cause notice has been issued.
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13. I have perused the impugned show cause notice, where, the two charges framed against the petitioner has been stated and what are all the proceedings that has been taken place subsequently, i.e., two round of litigations triggered by the petitioner has been mentioned. After mentioning these aspects, at para No. 5 of the impugned notice, the following has been stated:
",e;neu;tpy;. j';fs; kPJ Rkj;jg;gl;l Fw;wr;rhl;Lfs; mtw;wpd; kPJ j';fSila tpsf;fk; kw;Wk; tprhuiz mYtyupd; fz;lwpjy;fs; Mfpatw;iw muR bjhlu;g[ila Mtz';fSld; ftdkhf Ma;t[ bra;jjpy;. j';fs; kPJ Rkj;jg;gl;l Fw;wr;rhl;Lfs; epUg: zkhfpd;wd vd muR Kot[ bra;J. epUg: pf;fg;gl;l Fw;wr;rhl;LfSf;Fj; jz;lidahf j';fsJ Xa;t{jpaj;jpypUe;J khjk; xd;Wf;F U:/500/-(U:gha; IE}W kl;Lk;) tPjk; Xuhz;ow;F gpoj;jk; bra;ayhk; vd muR cj;njr KobtLj;Js;sJ/"
14. Expect this para No. 5 in the impugned notice, nothing has been stated, as to how the authority who passed the order, has come to the conclusion that the charges framed against the petitioner are proved. 14/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 Even though, it was mentioned that, the Government has considered the relevant documents, it has not been spelt out, as to what are the documents which were considered by the Government, based on which, the Government has come to a prima facie conclusion that, the charges framed against the petitioner has been proved.
15. This question arises naturally because, the Enquiry Officer has conducted full fledged enquiry and has concluded that, both the charges framed against the petitioner has not been proved. When that being so, the very materials or additional materials available to the Government, which were not considered by the enquiry officer, whether now been considered by the Government, has not been spelt out in the impugned order.
16. Moreover, the petitioner retired long back in the year 2005 and thereafter, he is only a pensioner, where he is getting a pension at his advanced age, based on these proceedings, he had to rush to this Court and filed litigation after litigation. Every time, this Court, even though 15/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 setting aside the orders passed by the authorities, as per the law, granted liberty to the respondents to proceed against the petitioner only under the provisions of the Pension Rule. The respondents took it as a green signal to proceeded against the petitioner without any basis. This Court is not questioning the jurisdiction of the authorities to proceed against the petitioner under Pension Rule, but this Court is of the strong view that, nothing has been stated in the impugned notice, as to how and why the Government has come to the conclusion that, the charges framed against the petitioner has been proved, despite the fact that, the Enquiry Officer has given his findings in detail stating that, both the charges framed against the petitioner has not been proved.
17. Therefore, this Court feels that, the impugned order is not based on any materials, as nothing has been spelt out in this impugned order to show that as to how the Government has come to the conclusion, as if stated in Para No. 5 of the impugned order quoted above. 16/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014
18. Hence, this Court has no hesitation to hold that the impugned order, would not stand in the legal scrutiny, thus it is liable to be quashed.
19. It is also to be noted that, as stated earlier, the petitioner retired 15 years back, so he must be in advanced age and at this age, if the respondents without any plausible reason, proposed to cut of his pension to the extent of Rs.500/- every month, that will have a bearing in the very livelihood of the petitioner. Therefore, that kind of privilege cannot be given at this stage after quashing the impugned order. Therefore, this Court feels that, no further proceedings can be made against the petitioner.
20. In view of the aforesaid conclusion arrived at in W.P. No. 26825 of 2014, it is needless to mention that, insofar as the prayer sought for in the other Writ Petition i.e., W.P. No. 12435 of 2007 is concerned, it is a natural corollary, which would fall automatically, for which, whether the petitioner is entitled to or not to get a notional 17/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 benefits as he claimed, shall also be considered by the respondents and accordingly, suitable orders in accordance with law shall be passed by the respondents within a time frame.
21. In the result, the following orders are passed in these Writ Petitions:
"(i) The impugned order in W.P. No. 26825 of 2014 is hereby quashed and no further liberty is given to the respondents to proceed against the petitioner at this juncture.
(ii) Consequently, the petitioner's request made in the prayer in the second Writ Petition i.e., W.P. No. 12435 of 2007 shall be considered by the respondents objectively and in this case, whatever rights accrued on the petitioner to get such benefits as claimed by him shall also be considered and a pragmatic decision shall be taken by the respondents and the same shall be communicated to the petitioner within a period of three months from the date of receipt of a copy of this order."
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22. With these directions, these Writ Petitions are ordered accordingly. However, there shall be no order as to cost. Consequently, connected Miscellaneous Petitions are closed.
27.01.2021 Index: Yes Speaking Order: Yes vji To
1. The Secretary to Government, Food Co-operation and Consumer Protection Department, Chennai - 9.
2. The Registrar of Co-operative Societies, 170, E.V.R. Periyar Road, Kilpauk, Chennai - 10.
19/20 https://www.mhc.tn.gov.in/judis/ W.P. No. 12435 of 2007 and W.P. No. 26825 of 2014 R. SURESH KUMAR, J.
vji W.P. No. 12435 of 2007and W.P. No. 26825 of 2014 and W.M.P. Nos. 1 and 2 of 2014 27.01.2021 20/20 https://www.mhc.tn.gov.in/judis/