Madras High Court
The Additional Chief Secretary To vs R.Malathi on 20 December, 2021
W.A.(MD) No.1940 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.12.2021
CORAM:
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
and
THE HON'BLE MRS.JUSTICE PUSHPA SATHYANARAYANA
W.A.(MD) No.1940 of 2021
and
C.M.P.(MD) No.8668 of 2021
1. The Additional Chief Secretary to
the Government of Tamil Nadu,
Home Department (Transport-IIA),
Secretariat, Chennai – 600 009.
2. The Transport Commissioner,
Chepauk, Chennai – 5. ... Appellants/Respondents
-vs-
R.Malathi ... Respondent/Petitioner
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 08.11.2019, passed in W.P.(MD) No.20038 of 2019, on the file of
this Court.
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W.A.(MD) No.1940 of 2021
For Appellants : Mr.M.Siddharthan, Addl.Govt.Pleader
For Respondent : Mr.RM.Arun Swaminathan
JUDGMENT
[Judgment of the Court was made by
The Hon'ble ACTING CHIEF JUSTICE]
By this writ appeal, a challenge is made to the judgment dated
08.11.2019, whereby, the writ petition to challenge the order of punishment
was allowed precisely on the ground of competence.
2. The facts of the case show that after initiation of disciplinary
proceedings, a minor punishment imposed on the writ petitioner was stoppage
of increment for six months without cumulative effect. The interference in the
said punishment order has been made by the learned Single Judge precisely
on the ground of competence of the authority to impose punishment. In
paragraph 6 of the judgment, the issue has been dealt with in a specific term.
The learned Single Judge noted that the Joint Transport Commissioner was
the appointing authority for the petitioner, whereas, the order of punishment
was passed by the Transport Commissioner i.e., higher authority, in other
words, the appellate authority in the case of the petitioner.
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W.A.(MD) No.1940 of 2021
3. In view of the aforesaid, the impugned punishment order was set
aside on the ground of competence. It is after referring to the case of the
judgment of the Hon'ble Supreme Court in Surjit Ghosh v. Chairman and
Managing Director, United Commercial Bank and others, reported in
1995 (2) SCC 474. The challenge to the said judgment has been made in
reference to Rule 12 of the Tamil Nadu Civil Services (D & A) Rules, 1955 (for
brevity 'the Rules'). Rule 12(2) provides for power of the higher authority of the
appointing authority to impose penalties on members of State Services, such
as restricted to punishment provided under items (i), (iii) to (viii) and (ix) of
Rule 8 of the Rules. The Rule aforesaid is quoted hereunder for ready
reference:
'(2) Power of the higher authority of
the appointing authority to impose penalties
on members of State Services.- Notwithstanding
anything contained in these rules, the appointing
authority or any authority administratively higher to
the appointing authority may impose the penalties
specified in items (i),(iii) to (viii) and (ix) of rule 8 on
members of the State Services:
Provided that where the members of the
State Services have been appointed by the
Government or by any authority administratively
higher than the appointing authority, the penalties
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W.A.(MD) No.1940 of 2021
specified in items (iii) in so far as it relates to
withholding of promotion and items (iv),(vi),(vii) and
(viii) in rule 8 shall be imposed only by the
Government or by such higher authority:
Provided further that where the State
Government are the appointing authority for
members holding the posts included in the State
Services, the Heads of Departments concerned may
impose any of the penalties specified in item (i) and
item (iii) in so far as it relates to withholding of
increments and items (v) and (ix) in rule 8 on those
members other than such members who are
immediately below such Heads of Departments:
Provided also that all authorities directly
higher to the members holding the posts included in
the State Services may frame charges against such
members of the State Services under rule 17(b) or
issue show cause notice under rule 17(a) even if
they are not the competent authority to impose the
penalty and they may conduct the inquiry
themselves or request the competent authority to
appoint an officer to conduct the inquiry. They shall
remit the papers to the competent authority for
passing final orders, after the case is processed
upto the level of completion of inquiry or after
receipt of explanation to show cause notice, as the
case may be:
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W.A.(MD) No.1940 of 2021
Provided also that where the appointing
authority or the authority administratively higher to
the appointing authority have passed orders of
suspension under rule 17(e) on the members of the
State Services, they may exercise the power to
impose the penalty specified in item (ix) in rule 8 on
such members. (Vide G.O.Ms.No.19, P&AR(N)
Department, dated 11.2.2008) (w.e.f.11.2.2008)'
4. The Rule referred to above gives power to higher authority to the
appointing authority to impose penalty and accordingly, in the instant case,
the initiation of inquiry and imposition of penalty is by the higher authority
than the appointing authority. It is the next higher authority to the appointing
authority, as the Joint Transport Commissioner is below the Transport
Commissioner in hierarchy of cadre. In view of the above, the challenge to the
judgment has been made.
5. The learned counsel for the respondents contested the appeal,
but could not show / establish as to how the order of punishment could have
been interfered with by the learned Single Judge, when the order of
punishment has been passed by the competent authority. The case was not
covered by the judgment in the case of Surjit Ghosh (supra). It is not only
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W.A.(MD) No.1940 of 2021
having distinguished facts, but the Rules applicable therein are different. The
general Rule remains that an order of punishment can be passed by the
appointing authority, and a higher authority would hear the appeal. In such
cases of order of punishment passed by the Appellate Authority, interference
in the order of punishment would be made on the ground of competency but
in the instant case, the Rule provides the punishment in another way. Rule
12(2) provides competence of appointing authority and even the higher
authority to impose punishment of the nature given items (i), (iii) to (viii) and
(ix) of Rule 8 of the Rules. The aforesaid has not been referred to before the
learned Single Judge for addressing the issue about the competence of the
authority to pass the order of punishment. In view of the above, the judgment
of the Hon'ble Supreme Court in Surjit Ghosh (supra), where the set of rules
giving competence to impose punishment was different than as referred to by
us in this case. It is not in all cases, the competence of the officer to impose
the punishment would lack, only for the reason that he is the Appellate
Authority. In the given case, the appointing authority has been vested with the
power to impose the order of punishment, and the order passed thereupon
cannot be nullified unless the Rules are struck down. The validity of the Rule
12(2) of the Rules is not challenged in this case.
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W.A.(MD) No.1940 of 2021
6. In view of the above, we find reasons to interfere with the order
of the learned Single Judge and the order dated 08.11.2019 is set aside.
Accordingly, the writ appeal is allowed. Consequently, connected
miscellaneous petition is closed. There shall be no order as to costs.
[M.N.B., A.C.J.] [P.S.N., J.]
20.12.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate / litigant concerned.
pkn/krk
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https://www.mhc.tn.gov.in/judis
W.A.(MD) No.1940 of 2021
M.N.BHANDARI, A.C.J.
and
PUSHPA SATHYANARAYANA, J.
pkn/krk
W.A.(MD) No.1940 of 2021
and
C.M.P.(MD) No.8668 of 2021
20.12.2021
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https://www.mhc.tn.gov.in/judis
