Madras High Court
K.R.Appavu vs The Government Of Tamil Nadu on 10 August, 2021
W.A.No.1713 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.08.2021
CORAM
THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE Mr.JUSTICE KRISHNAN RAMASAMY
W.A.No.1713 of 2018
K.R.Appavu ... Appellant
Vs.
1.The Government of Tamil Nadu
Rep. by its Secretary to Government
Rural Development & Panchayat Raj
Fort St. George, Chennai - 9
2.The Commissioner
Rural Development and Panchayat Raj
Panagal Building, Saidapet
Chennai - 15 ...Respondents
***
PRAYER : Writ Appeal filed under Clause 15 of the Letters Patent
against the order dated 06.06.2018 passed in W.P. No.11379 of
2011.
***
For Appellant : Mr.M.R.Jothimanian
For R1 & R2 : Mr.R.Neelakandan,
State Govt. Counsel
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W.A.No.1713 of 2018
JUDGMENT
PUSHPA SATHYANARAYANA, J.
The question that arises for consideration in this writ appeal
is, whether censure would amount to punishment?
2. The brief facts leading to the case are that the writ
petitioner, who is the appellant herein, retired from Government
service on 31.05.2010. Prior to his retirement, he was working as
Assistant Project Officer (EAS) at District Rural Development
Agency, Coimbatore. The writ petitioner was in the zone of
consideration for promotion to the post of Joint Director of Rural
Development in the year 2008 - 2009. But he was not considered
for promotion by the second respondent, as he was imposed with
the punishment of censure dated 20.12.2007. The said minor
punishment was imposed for the alleged misconduct committed by
the petitioner. When he was the Assistant Project Officer, he applied
for Casual Leave for four days, without prior sanction and
subsequently proceeded on Un-Earned Leave on Medical Certificate
for 30 days, which too was without prior intimation or sanction and
further he extended the Un-Earned Leave for another 30 days. For
the above misconduct, after issuing a show-cause notice calling for
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W.A.No.1713 of 2018
explanation and after enquiry, rejecting the explanation given by
the petitioner, punishment of censure was imposed. An appeal
against the same preferred before the Secretary to Government,
Rural Development Department on 16.9.2008 was rejected on the
ground of delay. Therefore, the writ petition was filed.
3. The writ court found that the petitioner could not have any
grievance against such innocuous punishment, particularly, when
the writ petitioner had already retired from the service. Aggrieved
by the same, the writ petitioner preferred the instant writ appeal,
which came up for consideration and an order came to be passed on
09.08.2008 by the Division Bench of this court holding that
censure can be treated as advisory in nature and not
adversary one and as such withholding promotion on such
ground can only be unjust and illegal.
4. Aggrieved by the said order, the Government had preferred
a Review Petition in Review Application No.230/2019. The review
petition was allowed vide order dated 10.12.2019 holding that the
earlier order overlooked the provisions of Rule 8 of the Tamil Nadu
Civil Services (Discipline and Appeal) Rules, which prescribes
censure as the first penalty in Rule 8 itself. Thus holding so, review
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W.A.No.1713 of 2018
petition was allowed, and the judgment dated 09.08.2018 was set
aside and the writ appeal was restored.
5. We are once again given the task of testing the validity of
the order passed by the learned single Judge. The punishment of
censure was imposed on the appellant for taking unauthorized leave
on various spells, without prior intimation or sanction and secondly
for leaving the State Headquarters without the permission of the
Collector of the District.
6. The grievance of the appellant is that his promotion was
denied to the post of Joint Director on the ground of punishment of
censure imposed on him. The learned counsel for the appellant
contended that the censure is only advisory in nature. Even
presuming it as a punishment, the same was taken away once the
sanction was granted by the authorities for the leave taken by the
appellant on 30.11.2007.
7. Whether the order of censure is advisory or adversary in
nature, has to be decided?
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8. Any order of censure is formal and separate act intended to
convey that the person concerned is guilty of some misconduct or
omission for which it has been found necessary to award him a
formal punishment. As has been stated in Rule 8 of Tamil Nadu Civil
Services (Discipline and Appeal) Rules, censure is the first penalty.
In this case also, after following the procedure of issuing show
cause notice, getting an explanation, after enquiry, the authorities
have imposed the formal punishment of censure, for good and
sufficient reason. The record of punishment would go to the
individual's Service Register and the same will have a bearing on
the assessment of his merit or suitability for promotion and censure
cannot be brushed aside lightly as a warning. Though a warning
may be an informal action like admonition or reprimand, even
though a warning is made known to the person that he had done
something blameworthy and will have an impact over the
assessment of his merit and suitability for promotion, it does not
amount to imposition of penalty of censure, because it is not a
formal punishment going on record.
9. The punishment after due enquiry was imposed on the
appellant on 20.12.2007. From the records, it is seen that the panel
for promotion was drawn between 2007 - 2008 and therefore on the
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date of drawing the panel for promotion, the lock in period of one
year after punishment of censure was in currency and in operation.
Therefore, even presuming that the blameworthy conduct of
unauthorised absence of the appellant was regularised or condoned,
he could not have been added in the promotion panel during the
lock in period of the punishment of censure.
10. In this regard, it is useful to refer to the decision of a
Division Bench of this court in W.A. No.67 of 2019 dated
10.01.2019 [G.M.Saravana Muthu Vs. The Principal Chief
Conservator of Forests, Mettur, Salem District], wherein the
Division Bench of this court held that any punishment (other than
censure) imposed on a member of service within a period of five
years prior to the crucial date and a punishment of censure imposed
within a period of one year prior to the crucial date shall be held
against the member of service and his name shall not be considered
for inclusion in the approved list. For better understanding,
paragraph No.5 of the said judgment is extracted hereunder:
"5. The learned Single Judge has held that
currency of punishment is a bar for promotion and an
employee suffering from an order of punishment cannot
be promoted to the higher post. He is eligible for
promotion only after the expiry of the currency of
punishment. In the present case, the writ
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petitioner/appellant herein suffered the punishment on
31.07.2003. The date on which the panel was prepared
was 24.11.2003. The appellant was therefore
undergoing punishment, when the panel was prepared.
The service rules provides that any punishment (other
than censure) imposed on a member of service within a
period of five years prior to the crucial date and a
punishment of censure imposed within a period of one
year prior to the crucial date shall be held against the
member of service and his name shall not be considered
for inclusion in the approved list."
11. In view of the discussion and the decision of this court
quoted above, we do not find any error or defect in the order of the
learned single Judge dated 06.06.2018 passed in W.P. No.11379 of
2011. Accordingly the same is sustained.
12. Accordingly, the writ appeal is dismissed. However, there
is no order as to costs.
[P.S.N., J.] [K.R., J.]
10.08.2021
Index : Yes / No
Internet : Yes / No
Asr
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To
1.The Government of Tamil Nadu
Rep. by its Secretary to Government
Rural Development & Panchayat Raj
Fort St. George, Chennai - 9
2.The Commissioner
Rural Development and Panchayat Raj
Panagal Building, Saidapet
Chennai - 15
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PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
Asr
W.A.No.1713 of 2018
Date : 10.08.2021
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