Madras High Court
V. Chandra Record Clerk O/O The ... vs The Government Of Tamil Nadu Rep. By Its ... on 29 September, 2006
Author: K. Chandru
Bench: K. Chandru
ORDER K. Chandru, J.
1. The petitioner in this case took out an application in M.P. No. 2 of 2006 for amendment of prayer in the main writ petition and the same was ordered on 24.7.2006.
2. The amended prayer in the writ petition is as follows:
The petition is filed for issuance of writ of Certiorarified Mandamus to call for the records of the first respondent in Proceedings L. No. 90588/94-2 dated 17.5.1995 and the records of the third respondent in Proceedings L. No. 13844/04 dated 31.5.2006 and quash the same and to direct the respondents to consider the case of the petitioner for promotion as Junior Assistant on merits according to her seniority, without reference to the Enquiry Report which has been stayed by the Tribunal.
3. The petitioner joined in the Commercial Taxes Department as a Record Clerk in 1989 and she had put in 17 years of service. According to the petitioner, she is qualified to be promoted as a Junior Assistant. On 03.10.2000, a charge memo was issued to her under Rule 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules (for short, 'the Rules') on the ground that she failed to make certain entries in the Movement Register regarding movement of vehicles carrying bone meal through Puliyarai Check Post in Tirunelveli District. It is stated that 16 other officials, who were in the Check Post, were also given charge memos. An Enquiry Officer was appointed and enquiry was held on 25.4.2001 and the Enquiry Officer by his report dated 19.7.2001 came to the following conclusions:
Thus the charges framed against the Check post Officers and staff on duty at Puliyarai Check post for the said period are proved and Tmt.V.Chandra is jointly responsible for allowing the movement of vehicles carrying bone meal for the period from June '99 to January 2000 through Puliyarai Check Post without making entries in the Movement Register and thus allowed the bone meal traders to evade tax resulting in loss of revenue to the Government to the tune of Rs. 9.70,160/-.
Though the Report of the Enquiry Officer is dated 19.7.2001, the second respondent/Special Commissioner and Commissioner for Commercial Taxes directed the Enquiry Officer to clarify certain portions of his Report and also to state whether the charges were clearly proved or not. Accordingly, the Enquiry Officer submitted a report dated 23.11.2001 however, without making any alteration with reference to the findings.
4. It is, at this juncture, the petitioner, along with another person, filed application before the Tamil Nadu Administrative Tribunal and the petitioner's application is pending in O.A. No. 676 of 2002. In that O.A., the petitioner had sought for setting aside the Enquiry Report dated 19.7.2001, subsequently, modified on 23.11.2001, passed by the Enquiry Officer, who was specifically made as a party third respondent in the O.A. In the same application, the petitioner has also prayed for interim relief, which is as follows:
In view of the reasons stated above, it is prayed that this Hon'ble Tribunal may be pleased to stay the report of the third respondent dt.19.7.2001 as modified on 23.11.2001 communicated to the applicant by memo EE1/71754.2001 dated 27.12.2001 of the first respondent pending disposal of the above Original Application and thus render justice.
5. The Tribunal, on entertaining the application, granted an ex parte order of interim stay on 12.02.2002. The matter was once again called on 28.02.2002 and the interim order was extended until further orders. Apparently, the Government Advocate representing the respondents was not present.
6. It is stated that the Original Application is still pending and in view of the abolition of the Tamil Nadu Administrative Tribunal, by the orders of the Government, her application, along with other applications, has been transferred to this Court and yet to be re-numbered and posted before appropriate Court. It is at this juncture, the petitioner sent a representation dated 09.3.2004 stating that she may be promoted to the post of Junior Assistant and her name may be included in the panel for the year 2003. She had also drew the attention of the Deputy Commissioner (CT), Tirunelveli, to the Government Letter No. 5930/Per-S/94-4, Personnel and Administrative Reforms (Per-S) Department dated 16.6.1994 enabling a person, who has been issued with a charge memo under Rule 17(b) of the Rules and when they are stayed, their names may be considered for promotion. She has also followed them up with further reminders dated 22.3.2005 and 20.02.2006.
7. When no reply was forthcoming for her representation, the petitioner has filed the present writ petition with the prayer that the respondents should be directed to consider her promotion to the post of Junior Assistant without taking into account the Report of the Enquiry Officer dated 19.7.2001, as modified on 23.11.2001, as the same has been stayed by the Tamil Nadu Administrative Tribunal by order dated 12.02.2002, further extended by order dated 28.02.2002, in O.A. No. 676 of 2002 and the stay is still in force. However, when it was pointed out that the Government's guidelines with reference to their order dated 16.6.1994 enabling the persons to be promoted was modified by another letter No. 90586/94-2 dated 17.5.1995 under the revised guidelines issued by the Personnel and Administrative Reforms (S) Department, it is stated that if the disciplinary proceedings are merely stayed by a Court, their cases shall be deferred till the proceedings are concluded, unless a contrary order is passed by the Court and it is decided not to challenge the same. If the Court or Tribunal quashed the charge memo, then the Government employee concerned should be considered for inclusion in the panel for higher post of promotion/recruitment by transfer, if he is otherwise qualified. When this was brought to the notice of the writ petitioner, she filed M.P. Nos. 1 of 2006 and 2 of 2006 seeking for inclusion of the first respondent Government as a party respondent and for amendment of the prayer respectively as stated above and the same were ordered by order dated 24.7.2006. The petitioner also filed M.P. No. 4 of 2006 seeking for grant of interim stay of the order of the first respondent in Letter No. 90586/94-2 dated 17.5.1995 and the order passed by the third respondent in Memo No. 13844/04 dated 31.5.2006 and notice was ordered on 24.7.2006.
8. When M.P. No. 4 of 2006 came up for hearing, with the consent of parties, the main writ petition itself was taken up for hearing.
9. I have heard Mr. S. Vadivelu, learned Counsel appearing for the writ petitioner as well as Mr. Shanmuga Sundaram, learned Government Advocate (Taxes) representing the respondents and perused the records.
10. Mr. S. Vadivelu, the learned Counsel appearing for the petitioner stated that the impugned direction issued by the Government by their letter dated 17.5.1995 is unconstitutional, arbitrary and violation of Article 14 of the Constitution of India as it seeks to interfere with the orders of the Court and if that direction is quashed, then his client will be entitled for promotion and prayed for an order accordingly.
11. The learned Counsel appearing for the petitioner drew the attention of this Court to the decision [Madan Lal Gupta v. Ravinder Kumar] to drive home the point that when an order of stay is granted by the Court, all the authorities and persons are bound by the orders made by it and it requires that there should be implicit obedience. Thereafter, he referred to the decision of the Supreme Court reported in (2001) 1 SCC 278 : JT 2000 (SUPPL.3) SC 62 [M/s Consolidated Coffee Ltd. Etc. v. The Agricultural Income Tax Officer, Madikeri and Ors.] and submitted that when an order of stay is in operation, then the order that is stayed does not exist in the eye of law. However, he took leave of this Court and circulated another judgment [Ravi S. Naik v. Union of India and Ors.] for the proposition that the stay order passed by the High Court could not be ignored even if the order is interim in nature and it is binding till it is set aside by a competent Court.
12. Before entering into the merits of the arguments made by the learned Counsel appearing for the petitioner, it is necessary to refer to the directions issued by the Government in the matter of promotion of any Government servant and the same is extracted below:
G.O.Ms. No. 368, Personnel and Administrative Reforms (Per-S) Department, dated 18th October 1993.
Lr. No. 59302/Per.S/94 dated 16.6.1994 Lr. No. 90586/94-2 dated 17.5.1995 I. In the said G.O. for paragraph 2 II (iv) (4) the following shall be substituted:
Wherever the charge memo issued under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules against a Government employee is stayed by a Court/Tribunal the resultant position is that there is no charge till the stay is vacated and that promotion/appointment of such person shall be considered on the basis of his performance as on the date of consideration for promotion/appointment as revealed through his personal file and seriousness of proved lapses, if any for which punishment has been imposed, previously, similarly, if the charge memo is quashed by the Court/Tribunal, then the name of the Government employee concerned should be considered for inclusion in the panel for appointment to higher post by promotion/recruitment by transfer, if he is otherwise qualified.
I. In the said G.O. for paragraph 2 II (iv) (4) the following shall be substituted:
Wherever the disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules against Government employees are stayed by a Court/Tribunal, their cases shall be deferred till the proceedings are concluded, unless a contrary order is passed by the Court/Tribunal and it is decided not to challenge the same. If, on the other hand, the Court/Tribunal quashes the same charge memo, then the name of the Government employee concerned should be considered for inclusion in the panel for appointment to the higher post by promotion/recruitment by transfer, if he is otherwise qualified.
13. As can be seen from the letter preceding the amendment itself in Letter No. 90586/94-2 dated 17.5.1995, the Government referred the decision of the Supreme Court [Union of India v. Tejinder Singh] and the relevant portion of the direction issued by the Supreme Court as found in paragraph 4 is usefully extracted below:
The appeal is accordingly allowed and the impugned order passed by the Central Administrative Tribunal directing the Union of India, Ministry of Finance to consider the respondent for promotion to the post of Commissioner of Income Tax, Level II, is set aside. While setting aside the impugned order of the Tribunal we would like to record that the Tribunal had no jurisdiction whatever while dealing with a petition to quash the contemplated departmental enquiry against the respondent, to make an interim order of this nature. We are also not satisfied as to the correctness of the view expressed by the Tribunal that a contemplated departmental inquiry or pendency of a departmental proceeding cannot be a ground for withholding consideration for promotion or the promotion itself. We are not aware of any rule or principle to warrant such a view. As at present advised, we do not subscribe to the view expressed by the Tribunal.
14. Though the case was decided as early as 26.9.1986, we do not know what delayed the Government to take into account the opinion expressed by the Supreme Court. Perhaps, the said decision itself came to light when it was referred to in another decision of the Supreme Court [Union of India and Ors. v. K.V.Janakiraman and Ors.] where the Supreme Court considered the issue whether the sealed cover procedure adopted in the Central Government Department should be resorted to even at the stage of preliminary investigation or only after the charge memo or charge sheet issued to the Government servant and it was observed as follows:
As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.
15. In the present case, the interim stay obtained by the petitioner before the Tribunal was only an ex parte order and it was only with reference to the report of the Enquiry Officer holding her guilty. This, by itself, will not amount to stay of the charge sheet dated 03.10.2000 given to her earlier. The effect of the interim order obtained by the petitioner is that the respondents are precluded from imposing any punishment pending final orders in the Original Application filed by her (which is now pending transfer to this Court). I do not know as to how the learned Counsel for the petitioner can take advantage of the interim order passed by the Tribunal and then say that there is nothing pending against her so as to come within the wrath of the impugned Government Letter dated 17.5.1995. In fact, there is no cause of action for the petitioner to challenge the impugned direction of the Government as found in the Tejinder Singh's case (cited supra). Even if she had filed an application before the Tribunal with reference to the disciplinary action, the said Tribunal could not have given any direction for considering her case for promotion. Even with the order of stay under currency, the disciplinary proceedings initiated against her are not wiped out and they are very much on record. Therefore, she cannot have the benefit of interim stay granted by the Tamil Nadu Administrative Tribunal for the present prayer. In any event, the decisions relied on by the learned Counsel for the petitioner has no application to the facts and circumstances of this case.
16. In (2001) 1 SCC 252 (cited supra), the Supreme Court was concerned with the earlier order passed by them and it arose out of the contempt petition filed before the Supreme Court. In that context, the Supreme Court in paragraph 7 of the order in the Contempt Application had observed as follows:
This prevaricating stand taken by the respondent is rather shocking. Whatever be the merits of the case when an interim stay is granted by this Court all authorities and persons are bound by the orders made by it and there should be implicit obedience to the same; and, if there is any violation thereof, the same would result in erosion of the system itself. Therefore, the explanation offered by the first respondent is not at all satisfactory to mitigate the charge made against him.
That was in the context of Article 144 of the Constitution of India.
17. Similarly, in paragraph 8 of the decision reported in (2001) 1 SCC 278 (cited supra), the Supreme Court observed as follows:
As has been pointed out by this Court in Kanoria Chemicals and Industries Ltd. v. U.P.SEB an order of stay may be made in different ways but the effect thereof is the same, namely, that for the period during which an order of stay operates, the order that is stayed does not exist in the eye of the law. Once the stay is vacated, the order is resuscitated and may then be executed. For the period of stay, therefore, the assessee cannot be said to be in default of the orders stayed and, therefore, no penalty in that behalf can be imposed.
The operative portion, which is found in paragraph 13 of the said judgment is also extracted below:
The facts are similar to those in CAs Nos. 98-102 of 2000 just decided except that, in this case, the stay order was passed by the High Court. For the period during which that stay order was in operation the assessee was not, for the reasons set out above, in default and the demand of penalty under Section 42 for that period is set aside.
18. The above said case arose under peculiar circumstances wherein under Section 42 of the Karnataka Agricultural Income Tax Act, 1957 whether during the period of stay a penalty can be imposed. The Court came to the conclusion that in view of the stay, the assessee was not expected to pay the tax. Then it cannot be held to be a default so as to attract the penalty by the Court.
19. The other decision that was relied on by the learned Counsel for the petitioner reported in AIR 1994 SC 1558 was a case that arose out of the context of the Speaker of Goa Legislative Assembly took a stand that the order of the Supreme Court is issued with reference to the disqualification of certain Members after the disqualification order was passed by the Speaker was not binding on him. It was further held that the order of the Speaker cannot be a subject matter of Court proceedings and his decision is final as far as the Tenth Schedule of the Constitution is concerned. In paragraph 42 of the said judgment, the Supreme Court observed as follows:
In the absence of an authoritative pronouncement by this Court the stay order passed by the High Court could not be ignored by the Speaker on the view that his order could not be a subject-matter of Court proceedings and his decision was final. It is settled law that an order, even though interim in nature, is binding till it is set aside by a competent court and it cannot be ignored on the ground that the Court which passed the order had no jurisdiction to pass the same. Moreover the stay order was passed by the High Court which is a Superior Court of Record and "in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction.
20. There, the emphasis is that the Supreme Court, being a Superior Court of Record, is entitled to go into the validity of the Speaker's order notwithstanding the finality made under the Tenth Schedule of the Constitution of India. I do not know as to how these decisions are helpful to the case of the petitioner in impugning the G.O. passed by the Government. In the impugned G.O., all that the Government said was that the case of a Government servant facing disciplinary action if it is merely stayed, his case shall be deferred till the proceedings are concluded unless a contrary order was passed by the Court and it is decided not to challenge the same. It is further stated that if the Court quashes the charge memo, then the name of the Government employee concerned should be considered for inclusion in the panel for appointment to the higher post by promotion/recruitment by transfer if he is otherwise qualified.
21. In my considered opinion, the impugned G.O. does not suffer from arbitrariness so as to come within the wrath of Article s 14 and 16 of the Constitution of India. On the contrary, the direction is salutary as otherwise on the strength of the ex parte interim orders and without reference to the context in which such interim order is granted, persons may claim for promotion. If ultimately, the case of the said employee fails before the Tribunal, then it will be an awkward situation for the Government to demote the Government employee. Further in the teeth of serious charges, persons may be holding higher post, which may look as a premium for his indisciplined behaviour. In the present case, by issuance of the impugned order, the Government has not violated any of the terms of the stay order granted by the Tribunal and it is not even the allegation that they have proceeded with the imposition of punishment disregarding the stay order. It is only in those circumstances, the action of the Government can be found faulted or a contempt proceedings may be issued against appropriate authorities for violating the orders of the Court. If, on the other hand, the order of the Government does not directly deals with the orders passed by the Court, but it merely states that the claim for promotion, which is entirely a different issue, will be considered as per the final result of the Court cases, then there is nothing wrong in issuing such an order.
22. In this context, it will be useful to refer to the decisions of the Supreme Court [Khem Chand v. Union of India and Ors.] wherein the Supreme court dealt with a case relating to the challenge made to Rule 12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 (for short, 'Central Rules'). Rule 12(4) of the Central Rules is extracted below:
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him, on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
23. When this Rule was attacked as violative of Article s 142 and 144 of the Constitution of India, it was rejected. Further, the Court also rejected the contention based on Article 19(1)(f) and 14 of the Constitution of India and upheld the validity of the said Rule. In paragraph 15 of the said judgment, the Supreme Court held as follows:
Mr. Sharma's argument as far as we could understand it is that under these provisions of Article s 142 and 144 a duty lay on the President to do all that was necessary to give effect to the decree made by this Court in the earlier appeal and that by framing Rule 12(4) the President has, in effect, gone against the directions of this Court as contained in that decree. In our judgment, there is no substance in this contention. If the decree of this Court had directed payment of arrears of appellant's salary and allowances and the effect of the Rule made by the President was to deprive him of that right there might perhaps have been scope for an argument that the rule contravened the provisions of Article 144. The decree made by this Court did not however contain any direction as regards payment of salary and allowances. It did contain a direction that the appellant will get his costs throughout in all courts. Quite clearly, however, the impugned Rule does not in any way affect that right of the appellant. The only other relief granted by the decree was the making of a declaration that the order of dismissal passed by the Deputy Commissioner, Delhi, on December 17, 1951 purporting to dismiss the appellant from service was inoperative and that the appellant was a member of the service at the date of the institution of the suit out of which the appeal had arisen. Does the impugned Rule go against this declaration? The answer, in our opinion, must be in the negative. The provision in the Rule that the government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal does not seek to affect the position that the order of dismissal previously passed was inoperative and that the appellant was a member of the service on May 25, 1953 when the first suit was instituted by the appellant. An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension.
24. When this decision was once again questioned before the Supreme Court in the decision [Nelson Motis v. Union of India and Anr.], the Supreme Court stated that the judgment rendered in Khem Chand's case was not erroneous and it does not require reconsideration and need not be referred to any larger Bench. In that decision, the Supreme Court dealt with a case of Rule 10(4) of the Central Rules and held that the Government servant can be kept under suspension even if he gets a decision of the court of law setting aside his original punishment and the said Rule is extracted below:
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
25. While upholding the said Rule, the Supreme Court in paragraph 10 of the judgment observed as follows:
The cases which attract Sub-rule (4), are thus those where the penalty imposed on the government servant is set aside on technical grounds not touching the merits of the case. Since at one stage the disciplinary authority records a finding on the charges against the government servant, which is not upset on merits, the situation is entirely different from that in the cases covered by Sub-rule (3). The classification is thus founded on an intelligible differentia, having a rational relation to the object of the rules and Rule 10 (4) has to be held as constitutionally valid.
26. Therefore, reference to the above two decisions of the Supreme Court clearly shows that in the matter of Government servants ever after getting a verdict in his favour through a Court of law on technical grounds, still the authorities can decide as to the effect of the verdict of the Court and on finding that such a verdict was only in technical nature, the authorities can take further action and till such time, there will be a deemed suspension. When that is the legal position, it is not made clear as to how the impugned order of the Government is liable to be struck down as violative of Article s 14 and 16 of the Constitution of India as contended by the learned Counsel for the petitioner. On the contrary, while the impugned G.O. prevents a guilty officer from getting undue promotion, yet, at the same time, guarantees promotion once the disciplinary proceedings are finally decided in favour of the said Government servant.
27. In the light of the above, there are no merits in the writ petition. The writ petition fails and the same shall stand dismissed. However, there will be no order as to costs. Since the impugned order is held to be valid in the eye of law, the further direction sought for by the petitioner to promote her cannot be granted at this stage. She will have to work out her remedy in O.A. No. 676 of 2002 (subsequently transferred to this Court) and the direction as prayed for cannot be granted. In view of the same, M.P. No. 4 of 2006 shall also stand dismissed.