Madras High Court
G.Ghulam Jeelani Papa vs / on 22 March, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
W.P.No.2465 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.03.2024
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P.No.2465 of 2018
and
WMP.No.3004 of 2018
G.Ghulam Jeelani Papa
S/o.Ghulam Hussain Papa
Deputy Collector (Admin)
Office of the Regional Deputy
Commissioner (North),
Corporation of Greater Chennai,
Chennai – 600 021. ... Petitioner
/Vs/
1.Government of Tamil Nadu,
Represented by Principal Secretary
to Government,
Revenue and Disaster Management Department,
Secretariat, Chennai 600 009.
2.The Principal Secretary and Commissioner of
Revenue Administration,
Disaster Management & Mitigation Department,
Chepauk, Chennai – 600 005.
3.The District Collector,
Chennai District,
Chennai – 600 001. ... Respondents
https://www.mhc.tn.gov.in/judis
1/22
W.P.No.2465 of 2018
PRAYER: The Writ Petition has been filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorarified Mandamus, calling
for the records on the file of the Second Respondent pertaining to (1)
Pro.Ser.2(1)/40734/2015 dated 07.01.2016 (served on 22.08.2016) and
the order of the First Respondent issued in G.O.(D).No.357 Revenue and
Disaster Management Department, Service Wing, Service 2(1) Sec.
dated 02.08.2017 and quash the same and to issue consequential
directions to the Second respondent to empanel the petitioner in the
ensuing panel for promotion as District Revenue Officer and to promote
the petitioner as such with retrospective effect from the date of promote
of the immediate junior with consequential benefits.
For Petitioner : Ms.R.Apoorva
for Mr.M.Ravi
For Respondent : Mr.L.S.M.Hasan Fizal
Nos.1 to 3 Additional Government Pleader
ORDER
The Writ Petition has been filed to issue a Writ of Certiorarified Mandamus, calling for the records on the file of the Second Respondent pertaining to (1) Pro.Ser.2(1)/40734/2015 dated 07.01.2016 (served on 22.08.2016) and the order of the First Respondent issued in G.O.(D).No.357 Revenue and Disaster Management Department, Service Wing, Service 2(1) Sec. dated 02.08.2017 and quash the same and to issue consequential directions to the Second respondent to empanel the https://www.mhc.tn.gov.in/judis 2/22 W.P.No.2465 of 2018 petitioner in the ensuing panel for promotion as District Revenue Officer and to promote the petitioner as such with retrospective effect from the date of promote of the immediate junior with consequential benefits.
2.The case of the petitioner is as follows:
(i).The petitioner has joined the service on 10.12.1984 as Junior Assistant in the Chennai District Revenue Unit and he has risen to the position of Deputy Collector in the department and he is fully eligible and qualified for empanelment in the ensuing panel for promotion as District Revenue Officer and now, he is serving as Special Deputy Collector, Land Acquisition, SIPCOT, Chennai – 8.
(ii).While he was serving as Headquarters Deputy Tahsildar, at Taluk Office, Egmore – Nungambakkam, Chennai District, the officials of the Chennai District Inspection Cell and the Deputy Superintendent of Police, Vigilance and Anti Corruption, Chennai – III had conducted joint inspection in the Taluk Office, Egmore - Nungambakkam on 08.09.2008 and detected the following lapses on his part.
https://www.mhc.tn.gov.in/judis 3/22 W.P.No.2465 of 2018
(i).Failed to maintain proper account for Rs.22,000/- collected towards teachers day fund.
(ii).Not maintained (1) General Cash Book since 22.03.2008 and (2) UDP Cash Book since 30.04.2008.
(iii).Engaged a Private individual namely, Tr.A.Ramakrishna, retired Government Servant for assisting in his official work and paid Rs.100/- per day to him as remuneration from his pocket.
(iii).The appropriate Investigation Authority of the Government had conducted a detailed enquiry and the first charge was not substantiated and the said Government thereupon by G.O.(2D).No.341, Revenue (Ser.10 (1)) Department, dated 07.10.2010 had dropped further action regarding the first lapse. That apart, regarding 2 & 3 lapses, the Investigation Authority found that they were substantiated and recommended for taking action as deemed appropriate and the Government in and by G.O.(2D) No.353, Revenue (Ser.10(1)) Department, dated 10.06.2010 accepted the recommendation and directed https://www.mhc.tn.gov.in/judis 4/22 W.P.No.2465 of 2018 the Disciplinary Authority to initiate departmental Disciplinary Proceedings against the petitioner.
(iv).The District Collector, Chennai, by issuing a Show Cause Notice in RC.No.A4/26420/2010 dated 21.12.2011 under Rule 17(a) of the Tamil Nadu Civil Services (D&A) Rules called upon him to submit his explanation for committing the abovesaid lapses 2 & 3. Regarding lapse No.2 has been split up in two counts, one for the lapse of not maintaining General cash book from 22.03.2008 onwards and two for not maintaining UDP cash book from 30.04.2008 onwards. In this regard, the petitioner had submitted a detailed explanation on 05.01.2012 stating that he joined as Headquarters Deputy Tahsildar at Egmore, Nungambakkam Taluk Office only on 05.07.2008 and hence, the non-maintenance of General cash book from 22.03.2008 and non maintenance of undisbursed pay Register from 30.04.2008 was not attributable to him and the maintenance of those books is a continuous process and this could not be rectified on a single day without details of opening balance and closing balance of all the days and he had maintained the accounts separately from the day, when he took charge and hence, the lapse alleged against him cannot be held as substantiated. The allegation of employment of a https://www.mhc.tn.gov.in/judis 5/22 W.P.No.2465 of 2018 private individual as pointed out that there were no proper persons at work and numerous sanctioned posts were kept vacant and he had managed to carry out day to day administration with the available staff and he had not engaged any other person, who is an outsider.
(v).The District Collector, Chennai, after the lapse of three years, submitted a report dated 06.08.2015 to the Commissioner of Revenue Administration, Chennai and based on that report, the Commissioner of Revenue Administration, Chennai, had passed the final order in Pro.Ser.2(1)/40734/2015 dated 07.01.2016 imposing the penalty of stoppage of one year increment without cumulative effect on the petitioner.
(vi).The report of the District Collector, Chennai, dated 06.08.2015 was not furnished to the petitioner and the Commissioner of Revenue Administration, Chennai, has not rendered any finding with regard to the lapse of non maintenance of General Cash Book and Undisbursed Pay Register and it must be taken that his explanation had been accepted and the Commissioner of Revenue Administration has stated with reference to the lapse of private individual, I Vigilance and https://www.mhc.tn.gov.in/judis 6/22 W.P.No.2465 of 2018 Anti-Corruption and his explanation are contrary to each other and hence, his explanation cannot be accepted.
(vii).The order of Commissioner of Revenue Administration, Chennai, dated 07.01.2016 has been passed after an inordinate delay of more than four years after he submitted his explanation on 05.01.2012 and there is a further delay of seven months in serving the order to him and it was served only on 22.08.2016. On the basis of the report alleged to have been issued by the Collector on 06.08.2015, the copy of the same has not been furnished to him; this is violative of the Principles of natural justice. The unsigned statement said to have been recorded from him by the Inspector of Police, Vigilance and Anti-Corruption, cannot be relied upon unless the same is substantiated in a regular enquiry. He has not stated anything before the police and the order has been issued at a time, when the panel for promotion to the post of District Revenue Officer is going to be finalized. The inordinate delay in rendering the final order and in communicating the same has been committed with mala fide intention to deprive him of his empanelment for the post of District Revenue Officer. Since the Disciplinary Proceedings itself was initiated on the basis of directions of the Government, he was under the https://www.mhc.tn.gov.in/judis 7/22 W.P.No.2465 of 2018 impression that he cannot get justice at the hands of the Government and he had filed the writ petition in W.P.No.36970 of 2016 seeking for quashing the order of punishment and for directions to empanel him in the ensuing panel for promotions as District Revenue Officer and to promote him with retrospective effect from the date of promotion of his immediate junior with consequential benefits and this Court by its order dated 05.12.2016 in W.P.No.36970 of 2016 had directed the petitioner to file an appeal to the Government within two weeks and further, directed the Government to consider the appeal and pass appropriate orders on merits and in accordance with law. After the direction, the petitioner had filed an appeal dated 29.12.2016 to the Government and the Government by G.O.(D).No.357, Revenue and Disaster Management Department dated 02.08.2017, rejected the appeal on untenable grounds. Hence, the present writ petition has been filed.
3.The learned counsel appearing for the petitioner submitted that there is an inordinate delay and unexplained delay further eight years from the date of alleged occurrence when the impugned order has been issued to the petitioner, when he is on the verge of empanelment and https://www.mhc.tn.gov.in/judis 8/22 W.P.No.2465 of 2018 promotion as District Revenue Officer. Even though the petitioner submitted his explanation on 05.01.2012 to the show cause memo under Rule 17(a) of the TNCS (D & A) Rules, there is a further delay of more than seven months to serve the order on 22.08.2016, which has exposed the petitioner to grave prejudice in the matter of his empanelment for promotion as District Revenue Officer.
4.Further, the learned counsel for the petitioner submitted that the impugned order of punishment has been passed based on the report dated 06.08.2015, which was not furnished to the petitioner. Such reliance on an undisclosed report to impose punishment is violative of the principles of natural justice. Further, he submitted that the petitioner is a Deputy Commissioner (Admn) having rendered 33 years of service and the order of penalty of stoppage of one year increment without cumulative effect confirmed by an appellate authority is untenable and he had not employed any private individual by paying Rs.100/- per day and the reliance of the first respondent on the unsigned statement of the petitioner recorded is also not sustainable. This was a proceeding under Rule 17 (a) of the TNCS (D&A) Rules, there was no enquiry and even assuming the petitioner had made such a statement unless it is https://www.mhc.tn.gov.in/judis 9/22 W.P.No.2465 of 2018 substantiated in the regular enquiry, it cannot be said that the charge has been substantiated in accordance with the rules in existence. The penalty might be put as an impediment for his empanelment to the promotion as District Revenue Officer and further submitted that the Disciplinary Authority without proper application of mind considering the relevant factors and also Rule 23 (1) of the TNCS (D&A) Rules. This Court while disposing the appeal, the penalty was imposed pertains to the year 2008, that too when the petitioner was holding a post which is the third lower cadre to that of District Revenue Officer, the penalty cannot be put as an impediment against the petitioner at this stage and thus, he prayed to allow the writ petition.
5.The learned counsel appearing for the respondents submitted that it is true that the petitioner was working as Head Quarters Deputy Tahsilder in the erstwhile Egmore-Nungambakkem Taluk, from 05.07.2008. After two months i.e 08.09.2008, a joint surprise check was conducted by the Additional Personal Assistant to Collector and officers of Directorate of Vigilance and Anti Corruption, City Special Unit – III at https://www.mhc.tn.gov.in/judis 10/22 W.P.No.2465 of 2018 the Egmore-Nungambakem Taluk Office, Chennai. It was found three lapses. The first lapse with respect to maintenance of a proper account for Rs.22,000/- collected towards teachers day fund was not substantiated and the same was dropped for further action. The department was directed to initiate departmental disciplinary proceedings against the petitioner and the show cause notice was issued No.A4/26420/2009 dated 21.12.2011 under Rule 17(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules 1973 and asking him to give an explanation for the lapses Nos.1, 2 & 3 and not 2 & 3. According to the petitioner's explanation, Explanation to lapses 1 & 2 I beg to submit that I joined duty as Head Quarters Deputy Tahsildar in Egmore – Nungambakkam Taluk only on 05.07.2008. Hence, the non-maintenance of general cash book from 22.03.2008 and undisbursed payment register since 30.04.2008 is no way connected to me. The maintenance of cash book and undisbursed payment register is continuous process. When the maintenance of cash book and undisbursed payment register is failed for one or more number of days then the https://www.mhc.tn.gov.in/judis 11/22 W.P.No.2465 of 2018 continuous maintenance of the cashbook and undisbursed payment register could not be done, since the last day closing balance shall be the opening balance of the succeeding day. In the absence of details of opening balance since 22.03.2008, the general cash book and the undisbursed payment register could not be maintained continuously. However, I had maintained the cash book and undisbursed pay register in separate sheet with that sheet I had made entries for the maintenance of the cash book and undisbursed payment register in a regular manner for a period I had worked as Head Quarters Deputy Tahsildar, Egmore-Nungambakkam Taluk. This has been verified by the audit party from the Revenue Administration Department at the time of inspecting the floor records. As the cash book and the undisbursed payment register had been maintained without any omission now, the alleged lapse has no locus standi for substantiation. Hence, further action on the alleged lapse may be dropped.
Explanation to lapse No.3 I had joined duty as Head Quarters Deputy Tahsildar on https://www.mhc.tn.gov.in/judis 12/22 W.P.No.2465 of 2018 05.07.2008. There was a dearth of officials to meet out the workload. Numerous sanctioned posts were kept vacant in the Taluk Office. Inspite of that I had managed to carry out the day to day administration work smoothly with the available staff strength. I never engaged any outsiders to do official duty. The individual who has been named as Thiru.A.Ramakrishnan is a retired official from Treasuries and Accounts Department. He came to the Taluk Office for his business. Perhaps he might have deposed before the Inspection part on the Vengeance of his dragging business. More over my salary was not so excessive to pay money to any one for having employed the outsider. The one sided statement alone cannot be the records to prove that I had paid money for the alleged employment. In fact I had not employed him for any of the official purpose and also I never paid money to him. Hence, I request that this charges may also be dropped since there is lack of full fledged enquiry records.
6.The learned counsel for the respondents further submitted that according to the petitioner, the allegation of the lapses started at Taluk Level when he was working as Deputy Tahsildhar. When the https://www.mhc.tn.gov.in/judis 13/22 W.P.No.2465 of 2018 disciplinary proceedings were pending, he was promoted to the cadre of Tahsildar and then the Deputy Collector under Tamil Nadu Civil Services and report dated 06.08.2015 was sent to the Additional Chief Secretary/ Commissioner of Revenue Administration, who is the appointing authority for the cadre of Deputy Collector and the Additional Chief Secretary/Commissioner of Revenue Administration passed a final order of punishment in his proceedings Ser 2(1)/40734/2015 dated 07.01.2016 awarding one year increment cut without cumulative effect.
7.Further, the learned counsel for the respondents submitted that the Head of the Department/Commissioner of Revenue Administration is the competent authority to pass final order in disciplinary cases where the Deputy Collectors are involved. Hence, the District Collector in his letter dated 06.08.2015 has sent all the relevant records to the second respondent as the petitioner has become a Deputy Collector and this letter has not given any new fact and this only an official communication and asking them to take appropriate legal action. The Additional Chief Secretary and Commissioner of Revenue Administration by an order dated 07.01.2016 had rejected the explanation of the petitioner and awarded a punishment of one year increment cut https://www.mhc.tn.gov.in/judis 14/22 W.P.No.2465 of 2018 without cumulative effect. The order of the second respondent was served on the petitioner on 22.08.2016 at a time when the District Revenue Officer promotion panel list has been going to be finalised. It is without any basis. Against the order of punishment, the petitioner filed W.P.No.36970 of 2016 for directions to empanel him in the ensuing panel for promotions as District Revenue Officer and promote him with retrospective effect which was considered by this Court and gave liberty to the petitioner to file an appeal to the Government and directed the Government to consider and pass orders on merits in the appeal, accordingly, the appeal was rejected by the Government vide government Order (D) No.357 Revenue and Disaster Management Department, Services Wing, Service 2(1) Section dated 02.08.2017. The authorities have stated that the petitioner was promoted as Tahsildar and then as Deputy Collector during the period of enquiry. The allegation of lapse started at Taluk level while he was working as a Deputy Tahsildar. According to them, the penalty might be put against the petitioner and it is seen that the first respondent has carefully and independently examined the request of the appellant with connected records and decided to reject the appeal preferred by the petitioner for the reason that the delinquent officer himself has admitted in his explanation that he had not maintained https://www.mhc.tn.gov.in/judis 15/22 W.P.No.2465 of 2018 the cash book and UDP register and maintained the same in a separate sheet. Maintenance of the cash book and UDP register in a separate sheet is not a correct procedure. He has also failed to bring this to the knowledge of notice of his higher authority that the abovesaid registers have not been updated by his predecessors before he joins duty and when he was taking a charge, he should verify all those aspects and the delinquent officer himself has deposed that he had personally given Rs.100/- per day to Thiru.Ramakrishnan (retired official) for availing his services in the Taluk office and the witness also confirmed the above deposition before the Appropriate Investigating Authority and the same cannot be brushed aside as invalid. The appeal was rejected and the government issued orders accordingly, and if the currency of punishment is on the crucial date, the name should be passed over at the time of first consideration irrespective of the time of occurrence of irregularity as per the Government letter (Ms). No.248 Personal and Administrative Department dated 20.10.1997. Further, the petitioner has accepted the promotion as DRO and worked as DRO in (Land and Estates), Greater Chennai corporation and also voluntarily retired from service and there is no question of giving retrospective. The prayer of the petitioner cannot be considered as the petitioner to promote him as such with retrospective https://www.mhc.tn.gov.in/judis 16/22 W.P.No.2465 of 2018 effect from the date of promotion of his immediate junior with consequential benefits is unfounded as none of the junior to the petitioner has been promoted as District Revenue Officer and further, all the aspects raised by the petitioner is untenable and thus prayed to dismissed the present writ petition.
8.I have considered the matter in the light of the submissions made by the learned counsel on either side and perused the materials available on record.
9.From a perusal of the records, it is seen that the petitioner had engaged a private individual namely A.Ramakrishnan, who was a retired Government Servant to do his official work and paid Rs.100/- per day remuneration from his pocket. The deposition of the petitioner as well as the said Ramakrishnan was also taken by the officials of Department of Vigilance and Anti Corruption. It is further seen that the first charge framed against the petitioner was dropped as it was not substantiated. The second charge, which pertains to the lapses committed by the petitioner in maintaining the accounts books, was found to be proved and only on https://www.mhc.tn.gov.in/judis 17/22 W.P.No.2465 of 2018 finding that the charge was proved, the petitioner was awarded with punishment of stoppage of increment for a period of one year without cumulative effect with the provision to appeal against the punishment imposed to the authority concerned. Consequent thereupon, the petitioner had approached this Court by way of a writ petition in W.P.No.36970 of 2016, which was dismissed by order dated 05.12.2016 directing the petitioner to file an appeal before the Government. Thereafter, the petitioner had filed an appeal before the Government challenging the punishment imposed. However, the same was rejected by order dated 02.08.2017 stating that whenever an officer is undergoing punishment and there is currency of punishment on the crucial date when the promotion panel is drawn, the name of such officer should be passed over at the time of first consideration irrespective of occurrence of irregularity. Hence, the petitioner was not considered for promotion to the post of District Revenue Officer for the years 2016, 2017 and 2018 as the punishment was under currency.
10.Further, it is seen that the disciplinary action initiated was based on the recommendation of appropriate investigating authority and https://www.mhc.tn.gov.in/judis 18/22 W.P.No.2465 of 2018 enquiry was conducted with available records and the request for promotion to DRO with retrospective effect on par with immediate junior with consequential benefits were not given as none of the juniors had been promoted as DRO. Further, the name of the petitioner was included in the panel for promotion to the post of DRO in the year 2019, was promoted as DRO and was permitted to retire from service voluntarily with effect from 30.11.2023 afternoon vide G.O.(D) No.404, Public (Special A) Department, dated 29.11.2023. Therefore, the petitioner’s claim that he should have been retrospectively promoted cannot be considered.
11. Besides, out of three charges framed against the petitioner, two charges were found to be proved for which only a minor punishment of stoppage of increment for a period of one year without cumulative effect was imposed. The petitioner’s case was also leniently considered by the authorities concerned and he was empanelled for promotion to the post of DRO in the year 2019 subject to the result of the W.P.(MD).No.8706 of 2019. Subsequently, as already stated, the petitioner was also promoted as DRO, (Land and Estates), Greater https://www.mhc.tn.gov.in/judis 19/22 W.P.No.2465 of 2018 Chennai Corporation and he was permitted to retire from service voluntarily with effect from 30.11.2023 afternoon by G.O.(D).No.404, Public (Special-A) Department, dated 29.11.2023. Admittedly, when the petitioner had accepted the promotion as DRO and worked in that capacity as such till he gave Voluntarily Retired from Service, the petitioner is not justified in claiming retrospective promotion. Therefore, this Court is of the view that no further adjudication is necessary in the matter and the order under challenge does not call for any interference. The writ petition is accordingly dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
Index : Yes/no
Internet : Yes/no
sms 22.03.2024
To
1.Government of Tamil Nadu,
Represented by Principal Secretary
to Government,
Revenue and Disaster Management Department,
Secretariat, Chennai 600 009.
2.The Principal Secretary and Commissioner of
Revenue Administration,
Disaster Management & Mitigation Department,
Chepauk, Chennai – 600 005.
3.The District Collector,
https://www.mhc.tn.gov.in/judis
20/22
W.P.No.2465 of 2018
Chennai District,
Chennai – 600 001.
V.BHAVANI SUBBAROYAN.J.,
sms
W.P.No.2465 of 2018
and
WMP.No.3004 of 2018
https://www.mhc.tn.gov.in/judis
21/22
W.P.No.2465 of 2018
22.03.2024
https://www.mhc.tn.gov.in/judis
22/22