Madras High Court
M.P.Thanigaivelan vs The Secretary To Government on 30 June, 2021
W.P.No.18989 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2021
CORAM
THE HONOURABLE MR. JUSTICE M.GOVINDARAJ
W.P.No.18989 of 2013
and M.P.No.1 of 2015
M.P.Thanigaivelan ... Petitioner
Vs.
1. The Secretary to Government,
Municipal Administration &
Water Supply Department,
Government of Tamil Nadu,
Chennai - 600 009.
2. The Commissioner,
Corporation of Chennai,
Chennai - 600 003. ... Respondents
PRAYER: The Writ Petition has been filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus, to
call for the records in G.D.C.No.E1/12160/2011 of the second respondent
dated 28.07.2011 confirmed by the orders passed by the first respondent in
G.O.(Pa) No.298, Municipal Administration and Water Supply (Maa.Na3)
Department dated 07.06.2013 and quash the orders passed therein and
consequently, accord all consequential reliefs and benefits.
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For Petitioner : Mr.L.Chandrakumar
for M/s.N.R.Jasminepadma
For Respondents : Ms.S.Deepa
Standing Counsel
-----
ORDER
The Writ Petition is directed against an order of punishment imposed
on the petitioner.
2. The petitioner was issued with a charge memo on 24.05.2011 for
dereliction of duty. The charges are that he failed to detect unauthorized
construction of a residential and commercial building at Plot No.3,
Visalakshi Nagar Second Street, Ekkattuthangal, Chennai - 32, and also
failed to demolish the unauthorized constructions which paved way for
Court case vide W.P.No.8408 of 2010. Second charge was that he failed to
issue notice in time and initiate prosecution against the unauthorized
construction. Third charge was that he had violated Rule 20 of Madras
Corporation Servants Conduct Bye Laws, 1983.
3. An Enquiry Officer was appointed and found that the charges were
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proved and on that basis, second respondent imposed punishment of
stoppage of increments for three years with cumulative effect. Against
which, the petitioner preferred an appeal before the first respondent and the
first respondent rejected the appeal. Aggrieved over the same, the present
Writ Petition has been filed.
4. I have heard the submissions made on either side and perused the
materials placed before this Court.
5. At the outset, the first charge was that the petitioner has failed to
detect the unauthorized construction and also failed to demolish the
unauthorized construction, which paved way for Court case vide
W.P.No.8408 of 2010. But, admittedly, Notice No.D, dated 17.08.2009 was
issued by the Corporation of Chennai, Zonal Office - IX, Chennai - 15, to
stop the construction work and the owner was called upon to produce a copy
of the approved plan within three days. From the Notice dated 17.08.2009, it
is very clear that the site inspection was made on 17.08.2009 and Notice
was also issued under Section 56 and 57 r/w Section 85 of the Tamil Nadu
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Town and Country Planning Act, 1971, on the same day.
6. Curiously, Notice was issued by the Executive Engineer of the
Zonal Office - IX to the owner of the site. It bears the signatures of the
Assistant Engineer and the Assistant Executive Engineer working under the
Executive Engineer. Therefore, the charges by itself are without any basis as
the inspection was done, unauthorized construction was detected and notice
was issued.
7. The learned counsel for the respondent would submit that action
was initiated against all the three officials and the punishment was imposed.
Be that as it may, but, in view of Notice dated 17.08.2009, charge one and
two are baseless. It appears that pursuant to the order passed by this Court in
W.P.No.8408 of 2010, the charge memo issued as a hoodwink.
8. Going further, the conduct of the enquiry proceedings would show,
it is not in accordance with the procedure laid down by law. From the
minutes of the enquiry report, I find that the enquiry was conducted like an
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interrogative session. There is no Presenting Officer to present the case of
the prosecution and to produce evidence for proving the charge. On the
other hand, it appears that questions were put to the delinquents by the
enquiry officer himself and the answers were recorded. Thereafter, the
Enquiry Officer submitted an enquiry report. The enquiry report describes
the charge in the first column, the reply furnished by the officials in the
second column and the findings in the third column. It proceeded on the
basis of what was perceived by the Enquiry Officer and not on the basis of
the evidence recorded during enquiry. The Enquiry Officer arrived at a
finding on the basis of the Notice issued on 17.08.2009 and Notices dated
09.03.2011 and 11.03.2011 and not on the basis of the oral and
documentary evidence given by the parties. The finding was that the
officials had taken 17 months to issue lock and seal notice after he has
issued notice to stop the construction work. The finding itself disproved the
charges and went beyond the scope of the disciplinary proceedings.
9. It is beneficial to repeat the charges: Charge No.1 was that the
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delinquent failed to detect the unauthorized construction and failed to
demolish the same and Charge No.2 was that not issuing notice in time. On
the other hand, the finding of the enquiry officer by itself proved that the
notice was issued on 17.08.2009 after detecting the unauthorized
construction pursuant to the inspection made on 17.08.2009. In that event,
as stated supra, both the charges fall to ground and the finding that delay in
locking and sealing the premises is not the charge and it is a subsequent
event. Against the enquiry report, the petitioner had submitted his
objections, wherein, he had narrated events and stated that after the stop
work notice, the owner of the building had approached the Hon'ble High
Court by filing a Writ Petition in W.P.No.8408 of 2010 and the Hon'ble
High Court granted an interim injunction restraining the respondent from
giving effect to the notice dated 24.05.2011.
10. However, the disciplinary authority namely, the second
respondent passed an order on 28.07.2011 without adverting to the relevant
facts. Wherein he has extracted the charges, explanation submitted by the
delinquent and finding of the enquiry officer and straight away imposed the
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punishment of stoppage of increments for three years with cumulative
effect. There is no discussion with regard to objections raised by the
petitioner against the enquiry report nor the explanation submitted by him to
the charges and the reasons for accepting the findings of the Enquiry
Officer. A cryptic order came to be passed by the disciplinary authority in
the following lines:-
"All the charges against him are held proved and it is of serious
nature. He is lethargic and casual in taking action against the illegal
constructions. Based on the Inquiry Officer, stoppage of increment for
three years with cumulative effect is awarded as punishment".
Other than this, no other discussion about the charges, laches of the officials
and findings of the Enquiry Officer has been made, no reasons recorded for
imposing such punishment.
11. At the out set, the impugned order on the face of it is a non-
speaking order and it suffers from non-application of mind. Even though the
charges were framed for not detecting the unauthorized construction, not
issuing notice, not demolishing the construction, the materials relied on by
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the enquiry officer by itself proved that notice was issued under Section 56
and 57 of the Tamil Nadu Town and Country Planning Act, 1971, on
17.08.2009 and hence, the charges are without basis. Further, failure to take
action in time was impeded by the interim injunction granted by this Court
on 10.03.2011 in W.P.No.8408 of 2010 was not at all considered. The
petitioner was not given an opportunity to examine and cross-examine the
witnesses nor he was given an opportunity to contradict the allegation made
against him.
12. Non-consideration of the material facts and not recording reasons
automatically deprive the petitioner from preferring an effective appeal
before the appellate authority. Therefore, the non-speaking and cryptic order
itself is in violation of principles of natural justice as held by the Hon'ble
Supreme Court in the case of The Government of Tamil Nadu and
another Vs. Ruchen S.Barua and others [ 2010 (2) SCC 497 ]. The
relevant portion of the judgment is extracted as follows:-
"19. In his order, the Chairman of the Managing Committee
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did refer to the allegations levelled against the appellant and
representation submitted by her in the light of the findings recorded
by the enquiry officer, but without ever adverting to the contents of
her representation and giving a semblance of indication of
application of mind in the context of Rule 120(1)(d)(iv) of the Rules,
he directed her removal from service. Therefore, there is no escape
from the conclusion that the order of punishment was passed by the
Chairman without complying with the mandate of the relevant
statutory rule and the principles of natural justice. The requirement
of recording reasons by every quasi-judicial or even an
administrative authority entrusted with the task of passing an order
adversely affecting an individual and communication thereof to the
affected person is one of the recognised facets of the rules of natural
justice and violation thereof has the effect of vitiating the order
passed by the authority concerned."
Failure to discuss about the factum of the case is violative of principles of
natural justice and vitiates the order passed by the authority concerned.
13. Coming to the order passed by the appellate authority in G.O.(P)
No.298, Municipal Administration and Water Supply Department, dated
07.06.2013, it also suffers from the vices of non application of mind and
arbitrary exercise of power. The appellate authority after extracting the
grounds of appeal raised by the appellant, has found that on perusal of the
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records, the delinquent has committed inexplicable delay in taking action
and therefore, the appeal was dismissed. The order passed by the appellate
authority is completely beyond the scope of the charges framed against the
petitioner. The charge is not against the delay committed by the delinquents
is not stopping the constructions. In fact, the materials go to show that
action was taken in time by issuing notice dated 17.08.2009 and the oral
evidence adduced by the delinquent goes to show that work was stopped by
the petitioner. Due to the pendency of the Writ Petition, the further action
could not be proceeded. But absolutely, there is no discussion or finding and
there is no application of mind to these material facts either by the
disciplinary authority or by the appellate authority.
14. Therefore, this Court is inclined to set aside the order passed by
the second respondent in G.D.C.No.E1/12160/2011, dated 28.07.2011,
confirmed by the first respondent in G.O.(Pa) No.298, Municipal
Administration and Water Supply (Maa.Na3) Department dated 07.06.2013
and are accordingly set aside.
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With the above observations, the Writ Petition is allowed. The
respondents are directed to settle all the attendant and monetary benefits to
the petitioner within a period of eight (8) weeks from the date of receipt of a
copy of this order. There shall be no order as to costs. Consequently, the
connected Miscellaneous Petition is closed.
30.06.2021
asi
Index : Yes/No
Internet : Yes/No
Note: Issue order copy on 22.07.2021
To
1. The Secretary to Government,
Municipal Administration &
Water Supply Department,
Government of Tamil Nadu,
Chennai - 600 009.
2. The Commissioner,
Corporation of Chennai,
Chennai - 600 003.
M. GOVINDARAJ, J.
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asi
W.P.No.18989 of 2013
and M.P.No.1 of 2015
30.06.2021
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