Madras High Court
Government Of Tamil Nadu vs D.R.B.Gunasekaran on 1 October, 2021
Writ Appeal No.2121 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.10.2021
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
Writ Appeal No.2121 of 2021
1. Government of Tamil Nadu,
rep. by Secretary to Government,
Municipal Administration and
Water Supply Department,
Secretariat,
Chennai 600 009.
2. The Commissioner of Municipal Administration,
MRC Nagar,
Chennai 600 028. ... Appellants
vs.
D.R.B.Gunasekaran ... Respondent
Writ Appeal filed under Clause 15 of Letters Patent against the order
dated 22.10.2018 passed by this Court in W.P.No.22761 of 2008.
For Appellants : Mr.K.V.Sajeev Kumar,
Government Advocate
For Respondent : Mr.M.Ravi
Page No.1 of 9
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Writ Appeal No.2121 of 2021
JUDGMENT
(Judgment of the Court delivered by S.VAIDYANATHAN,J.)
The present Appeal has been preferred by the Government challenging
the order dated 22.10.2018 passed by the learned Single Judge in
W.P.No.22761 of 2008, in holding that, the punishment imposed on the
Respondent/Writ Petitioner will not deprive him to be considered for
inclusion to the panel for promotion for the year 2007-08.
2. Learned Government Advocate appearing for the Appellants
submitted that, charges have been framed against the Respondent/Writ
Petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline &
Appeal) Rules (hereinafter referred to as 'Rules') and after due enquiry,
punishment of 'stoppage of increment for two years with cumulative
effect' was imposed. It is his contention that, though the Respondent/Writ
Petitioner has committed serious misconduct, only a lesser punishment has
been imposed on him and hence, he is not entitled to the relief sought for by
him.
3. It is further contended by the learned Government Advocate
that, the crucial date for considering the candidature is 15.03.2007 and the
Enquiry Officer submitted a Report on 01.12.2006 and the punishment order
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Writ Appeal No.2121 of 2021
has been issued on 30.10.2007. Totally, seven charges were framed against
the Respondent/Writ Petitioner, out of which, only three charges viz. charge
Nos.1, 3 and 4 alone have been held to be proved and the remaining charges
were not proved. According to the learned Government Advocate, in view of
the fact that, the punishment imposed on the Respondent/Writ Petitioner falls
under the caption 'Major Penalty', the order of the learned Single Judge in
directing the Government to include the name of the Writ Petitioner in the
panel for promotion as an Assistant with retrospective effect, needs to be
interfered with.
4. On the other hand, learned counsel appearing for the
Respondent/Writ Petitioner submitted that, the charges framed against the
Respondent/Writ Petitioner itself are minor in nature and instead of framing
the charges under Rule 17(a) of the Rules, the Authority has framed the
charges under Rule 17(b) of the Rules.
5. For the sake of convenience, charges proved against the
Respondent/Writ Petitioner, are extracted below:
CHARGE 1:
"that Thiru D.R.B.Gunasekaran, Junior
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Writ Appeal No.2121 of 2021
Assistant failed to put up a note pointing out that
there is ban for filling up of vacant posts (except
certain categories) vide G.O.Ms.No.212,
Personnel and Administrative Reforms,
Department, dated 29.11.2001 when the
Municipal Commissioner ordered the
appointment of 12 Sanitary Workers on
compassionate grounds on 10.01.2002,
01.02.2002 and 18.02.2002 and 31 NMRs as
Sanitary Workers on consolidated pay on
18.02.2002 and 21.02.2002 as noted in Annexure
II."
CHARGE 3:
"that he had put up draft proceedings to the
Municipal Commissioner for the appointment of
Sanitary Workers on consolidated pay of
Rs.2000/- on 18.02.2002 and 21.02.2002 in File
No.10484/99/H2. Without following the norms
issued in G.O.Ms.No.71, Municipal
Administration and Water Supply Department,
dated 05.05.1998 in fixing their pay with
reference to their service."
CHARGE 4:
"that he had failed to take action for obtaining
the permission of Commissioner of Municipal
Administration as per G.O.Ms.No.195,
Municipal Administration and Water Supply
Department, dated 17.08.1999, for bringing 30
Sanitary Workers in consolidated pay, into time
scale of pay of Rs.2550-55-2660-60-3200 and
orders were issued vide procs.
10484/99/H2,dt.13.03.2003/10484/99/H2, dt.
01.04.2003/10484/99/H2, dt. 21.05.2003 of the
Municipal Commissioner, Tiruvottiyur.
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Writ Appeal No.2121 of 2021
6. Entire charges extracted supra appears to be one falling under
Rule 17(a) of the Rules. Hence, according to the learned counsel appearing
for the Respondent/Writ Petitioner, in the light of Part III of the Tamil Nadu
Municipal Service (Discipline and Appeal) Rules, 1970, the Writ Petitioner is
entitled to be promoted.
7. Heard the learned Counsel on either side and perused the
material documents available on record.
8. It is not in dispute that, the Respondent/Writ Petitioner was
charged for a misconduct and out of seven charges framed against him, three
charges, as extracted supra, have been held to be proved and the punishment
of 'stoppage of increment for two years with cumulative effect' has been
imposed. Whether the punishment of 'stoppage of increment with cumulative
effect' is a major one or not, has to be considered.
9. Generally, it appears that punishment of 'stoppage of increment
with cumulative effect' is a major punishment, but, it depends upon the Rules
that are applicable to the charges framed. For the sake of convenience, Part
III of the Tamil Nadu Municipal Service (Discipline and Appeal) Rules,
1970, is extracted below:
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Writ Appeal No.2121 of 2021
PART III - DISCIPLINE – PENALTIES :
"3. Penalties- The following penalties may, for
good and sufficient reason, be imposed on any member of
a service, namely:-
(1) Censure;
(2) Withholding of increments or promotion
including stoppage at an efficiency bar;
(3) Reduction to a lower rank in the seniority list or
to a lower post time scale or to a lower stage in a time-
scale;
(4) Recovery from pay of the whole or part of any
pecuniary loss caused to a Municipal Council or to any
local body or to the State Government or the Central
Government by negligence or breach of orders;
(5) Recovery from pay to the necessary of the
monetary value equivalent to the amount of increments
ordered to be withheld, where such an order cannot be
given effect to;
(6) Recovery from pay to the necessary of the
monetary value equivalent to the amount of reduction to a
lower stage in a time scale ordered, where such an order
cannot be given effect to;
Explanation:- In case of stoppage on increment with
cumulative effect, the monetary value of three times the
amount of increments ordered to be withheld may be
recovered.
(7) Compulsory retirement from the Municipal
service;
(8) Removal from the Municipal service;
(9) Dismissal from the Municipal service; and
(10) Suspension, where a person has been
suspended under rule 17(e), to the extent considered
necessary by the authority imposing the penalty.
Explanation":- The penalties mentioned in items 1, 2, 4 to
6 and 10 will be deemed to minor penalties, and those in 3,
7 t 9 as major penalties."
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Writ Appeal No.2121 of 2021
10. From the above explanation, it is clear that, withholding of
increments or promotion including stoppage at an efficiency bar, is
considered to be a minor penalty.
11. The contention of the learned counsel appearing for
Respondent/Writ Petitioner is supported by the decision of this Court in the
case of Government of Tamilnadu vs. P.Sundar (Writ Appeal No.1184 of
2015, dated 07.08.2018), wherein, the employee was imposed with the
punishment of stoppage of increment for a period of six months without
cumulative effect.
12. Even though, learned Government Advocate appearing for the
Appellants tried to convince us on the ground that, the punishment of
stoppage of increment for six months without cumulative effect imposed on
the employee in the case of P.Sundar (supra) is a minor punishment, and in
the present case on hand, the punishment of stoppage of increment for two
years with cumulative effect imposed on the Respondent/Writ Petitioner is a
major one, in terms of the Rules extracted supra, we find much force in the
contention of the learned counsel appearing for the Respondent/Writ
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Writ Appeal No.2121 of 2021
Petitioner that, the punishment imposed on the Respondent/Writ Petitioner is
only minor in nature.
13. In view of the above, we find no reason to interfere with the
order dated 22.10.2018 passed by the the learned Single Judge in
W.P.No.22761 of 2008, and the same is confirmed.
In fine, the Writ Appeal stands dismissed. No costs.
[S.V.N.,J.] [A.A.N.,J.]
01.10.2021
Index : Yes/No
Speaking Order : Yes/No
(vm/aeb)
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Writ Appeal No.2121 of 2021
S.VAIDYANATHAN,J.
AND
A.A.NAKKIRAN,J.
(aeb)
Judgment in
W.A.No.2121 of 2021
01.10.2021
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