Madras High Court
A. Ravi vs The Secretary To Government on 20 November, 2009
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.11..2009
CORAM:
THE HONOURABLE MR. JUSTICE R.SUDHAKAR
W.P. No.8116 of 2006
.......
A. Ravi ...Petitioner
Vs.
1. The Secretary to Government,
Public (Special-A) Department,
Fort St. George,
Chennai.9.
2. The Secretary to Government,
Revenue Department,
Fort St. George,
Chennai.9.
3.The Principal Commissioner and
Commissioner of Revenue
Administration,
Chepauk, Chennai.5. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the impugned order of the second respondent passed in G.O.2(D) No.515, Revenue (Ser.2(2) Department, dated 28.12.2005 and quash the same and consequently directing the respondents to promote the petitioner as District Revenue Officer from the of promotion of his juniors with all monetary and attendant benefits.
For Petitioner : Mr. Veera Kathiravan
For Respondents : Mr. V. Manoharan
Govt. Advocate
O R D E R
This writ petition is filed to quash the order of the second respondent in G.O.2(D) No.515, Revenue (Ser.2(2)Department, dated 28.12.2005 and direct the respondents to promote the petitioner as District Revenue Officer from the date of promotion of his juniors with all monetary and attendant benefits.
2. Though the writ petition is filed challenging the impugned proceedings for the relief of promotion and all other monetary and attendant benefits, the learned counsel for the petitioner restricts his plea with regard to the quantum of punishment imposed stating that there is total non application of mind by the authority while imposing the punishment. It is bereft of reasons and therefore, it has to be set aside.
3. The petitioner was working as a Deputy Collector and on deputation posted as Administrative Officer in Anna Institute of Management, Chennai. The petitioner was issued with a charge memo dated 15.3.2002 under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, wherein, the following five charges have been framed against the petitioner.
" Charge .1.: Due to his ineffective supervision of cash accounts during his tenure as Assistant Commissioner II, O/o the Commissioner of Prohibition and Excise, Chennai, there were delays in disbursement of cash to the staff, by Thiru L. Kumar, the then Cashier and Superintendent ranging from 7 days to 3 months as detailed in the Annexure VI and VII.
Charge 2: Being a Drawing Officer, he should have verified the cash accounts daily, properly and thoroughly. He failed in this basic and important duty, which resulted in the belated disbursement of encashed cheque payments to the staff by Thiru L. Kumar, the then Cashier and Superintendent ranging from 8 days to 3 months as detailed in Annexure VIII & IX.
Charge 3: He failed to check the actions of Thiru L.Kumar, the then Cashier and Superintendent, who was in the habit of remitting amount recovered from the salaries of staff belatedly, such as postal Recurring Deposit, L.I.C. Premium and other Bank loan, as detailed in Annexure V. Charge 4 : In respect of the following items, the amounts have been remitted into drawing officer account, but the details of such deposits and disbursement have not been furnished in the Cash Book.
Sl.No. Date of remittance into the Drawing Officer Account Amount Whether deposit/ disbursement details have been furnished in the cash Register 1 5698 Rs. 10,000/-
--2
13.11.1998 Rs. 3,56,108/-
--3
30.11.1998 Rs.2,82,816/-
--
5. Being a drawing officer, he has shown extreme form of dereliction of duty to monitor the cash transaction done by Thiru L. Kumar, Cashier cum Superintendent which paved way of temporary misappropriation of Government money by him. Thus by his failure to monitor the basic duty involving financial transaction, he has shown total incapability and ineffectiveness as a drawing officer. "
4. An enquiry officer was appointed and enquiry conducted. Based on the explanation submitted after following the procedure prescribed, the enquiry officer found that all the charges were proved except charge No.4. The petitioner was given an opportunity to submit his further explanation based on the finding of the enquiry officer. An explanation was submitted on 19.10.2004 by the petitioner stating his defence. The Government, thereafter passed the impugned order in G.O. 2(D), 515, Revenue (Ser.2(2) Department, dated 28.12.2005 imposing punishment as follows:-
" The Government examined the charges, explanation of the delinquent officer, findings of the Inquiry Officer, and the further representation of the delinquent officer with relevant records carefully and independently. The further representation of the delinquent officer is not convincing. Therefore, they have decided to hold charges 1,2,3 and 5 as proved and charge 4 as not proved. For the proven charges, the Government have decided to impose a punishment of stoppage of next increment for one year with cumulative effect on Thiru A.Ravi, Deputy Collector/formerly Assistant Commissioner-II of prohibition and Excise Department and order accordingly. The punishment is inclusive of the period spent on leave and it will affect his pension."
This Government Order as above is under challenge in the present writ petition.
5. A counter affidavit has been filed by the respondents denying the various averments made in the writ petition and also explaining the reasons for the punishment imposed.
6. Heard Mr. Veerakathiravan, learned counsel for the petitioner, and Mr.Manoharan, learned Government Advocate for respondents.
7. The short question, for consideration in the writ petition relates to punishment imposed by the Government, of which, the petitioner is aggrieved stating that except recording the finding of the enquiry officer and the explanation of the petitioner, there is absolutely no reason given while imposing the punishment.
8. On going through the impugned order, it is seen that, in paragraph 3 of the order, it is stated that the Government has examined the charges, explanation given by the delinquent/ petitioner , finding of the enquiry officer and the report of the enquiry officer and also considering the records filed, found that the representation of the delinquent officer is not convincing. Therefore, in respect of four proved charges, the Government imposed the punishment as above. There appears to be no deliberation on the nature of delinquency and to the nature of punishment to be imposed after considering the explanation.
9. On the other hand, a counter affidavit has been filed explaining the reason for imposition of punishment in paragraph 19, which reads as follows:-
" With regard to the averments raised in paragraphs 7 and 8 of the affidavit, it is submitted that the second respondent has considered the explanation of the petitioner carefully and independently with reference to the inquiry report, the further representation of the writ petitioner and relevant records and only after arriving at a conclusion that the further representation was not convincing a punishment of stoppage of next increment for one year with cumulative effect was imposed. Inasmuch as a punishment was imposed, it is but natural that suitable action has to be taken to implement the orders of punishment. As narrated in the foregoing paragraphs, the petitioner has lost all moral rights much less legal rights to seek any promotion as District Revenue Officer, a selection post and the highest post a Revenue Staff in Revenue Department can aspire for in his career only on account of his proved supervisory failure even in a very preliminary work of controlling the Government transactions in his office at the relevant time. Any leniency shown to him will signal a wrong message to similarly placed persons and will demoralize other staff who have rendered blemish-free and punishment-free service and aspiring for promotion as District Revenue Officer. This will als affect the image of the Department and cause incalculable harm to the morale of the organisation and effectiveness of public delivery of goods to the public. As the punishment is well within the law, the prayer of the petitioner to stay the impugned order of punishment passed in G.O.2(D) No.515, Revenue Department, dated 28.12.2005 has no merit and hence, it is liable to be dismissed as devoid of merits." (emphasis supplied).
10. As could be seen from the counter affidavit, the Government has given its reason for imposing the punishment in the counter affidavit in support of the order impugned.
11. It is trite law that the case of the respondents cannot be improved on the basis of the counter-affidavit or the written submissions vide Mohinder Singh Gill and another v. - The Chief Election Commissioner, New Delhi and others AIR 1978 Supreme Court 851 and S.N.Mukherjee v. - Union of India (1990)4 SCC 594. In para 8 of the decision in AIR 1978 SC 851 reads as follows:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16)(at p.18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
Orders are not like old wine becoming better as they grow older."
Para 36 in (1990)4 SCC 594 reads thus:-
"36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision on judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage."
12. The order under challenge insofar as the imposition of punishment is concerned, is a non speaking order bereft of reasons and therefore, cannot be sustained. It is made clear that the finding of guilty with regard to the charges 1 to 3 and 5 is not under challenge. Hence, the matter is remitted back to the Government for re-considering the quantum of punishment. The Government will decide the issue within a reasonable time. It is needless to state that the authority while considering the said issue has to support the order with reasons as has been held by the Apex Court, cited supra. This writ petition is ordered to the extent indicated above. Consequently, WP.M.P.Nos. 9057 and 9058 of 2006 are closed. No costs.
ra To
1. The Secretary to Government, Public (Special-A) Department, Fort St. George, Chennai.9.
2. The Secretary to Government, Revenue Department, Fort St. George, Chennai.9.
3. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai 5