Madras High Court
Mr.T.Alfred vs The Government Of Tamil Nadu on 1 October, 2021
W.P.(MD).No.10562 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
W.P.(MD).No.10562 of 2017
Mr.T.Alfred .. Petitioner
Vs.
1.The Government of Tamil Nadu
Rep by its Additional Chief Secretary to
the Government,
Commercial Taxes and Registration Department,
Secretariat, Fort. St George, Chennai.
2.The Inspector General of Registration,
Chennai-28
3.The District Registrar,
Marthandam ... Respondents
Prayer:Writ Petition filed under Article 226 of the Constitution of India, for
the issuance of Writ of Certiorarified Mandamus, calling for the records relating
to the impugned order of punishment issued by the Inspector General of
Registration in number 19581/V2/2010 dated 29.01.2016 and the subsequent
order of rejection of petitioner's appeal by the first respondent/Government
dated 06.02.2017 in G.O.(D) No.47, Commercial Taxes and Registration(M2)
department and quash the same and for a consequential direction to provide
promotion to the petitioner with retrospective effect from the date on which his
immediate junior was promoted with all attendant consequential monetary and
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W.P.(MD).No.10562 of 2017
service benefits including seniority in the promotional post above his
immediate junior.
For Petitioner : Mr.N.Dilipkumar
For Respondents : Mr.M.Lingadurai
Government Advocate
ORDER
This Writ Petition is filed for issuance of a writ of Certiorarified
Mandamus to quash the order of punishment dated 29.01.2016 imposed by the
second respondent and the subsequent order of the first respondent dated
06.02.2017 vide G.O.(D) No.47, Commercial Taxes and Registration(M2)
department and consequential direction to provide promotion to the petitioner
with retrospective effect from the date on which his immediate junior was
promoted with all attendant consequential monetary and service benefits
including seniority in the promotional post above his immediate junior.
2.The petitioner was recruited as an Office Assistant in the
Registration Department through employment exchange and accordingly,
joined duty on 27.05.1992. while he was working in the Sub-registrar Office,
Karungal, there was a surprise inspection by the Vigilance Department, on
11.09.2008. Following the inspection, the officials found some deficiencies and
irregularities and a charge memo dated 07.06.2010 was issued to the petitioner
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and the person, who was holding charge as Sub-Registrar by name
C.Sundaradhas. The following are the specific charges against the Sub-
Registrar(charge No.1 & 2) and the petitioner (3&4).
“Fw;wr;rhl;L vz;.1
ePh; Fw;w mYtyh;-1 (jpU.rp.Re;jujh];)
cjtpahsh; fUq;fy; rhh;gjpthsh; mYtyfj;jpy; 11.09.2008k; njjp
rhh;gjpthsh; bghWg;gpy; ,Ue;jnghJ 11.09.2008k; njjp 18.10 kzp
Kjy; 21.50 kzp tiu fUq;fy; rhh;gjpthsh; mYtyfj;ij Jiz
Ma;t[f;FG mYtyh; jpUbey;ntyp J}j;Jf;Fo fd;dpahFkhp
khtl;lq;fs; Chy; jLg;g[ kw;Wk; fz;fhzpg;g[j; Jiw fhty; Jizf;
fz;fhzpg;ghsh; fhty; Ma;thsh; kw;Wk; fhty; Mspeh;fSld;
jpOh;nrhjid bra;jnghJ 11.09.2008k; njjpa muR tUkhd tr{y;
bjhif U:.20870/-f;F U:.10870/- ,Ue;jpUg;gjd; K:yk;
Fiwt[j; bjhif U:.10000/- f;F bghWg;ghfpwPh;.
Fw;wr;rhl;L vz;.2
ePh; Fw;w mYtyh;-1 (jpU.rp.Re;jujh];) fUq;fy;
rhh;gjpthsh; mYtyfj;jpy; rhh;gjpthsh; bghWg;gpy; ,Ue;jnghJ
11.09.2008k; njjpa nkw;go nrhidapd;nghJ jq;fsplkpUe;J U:.
5560/-f;F ePq;fs; rhpahd fzf;Ffs; fhz;gpf;fhjjhy;
mj;bjifapid ePq;fs; ifa{l;lhf bgw;wpUf;fyhk; vd;w
Fw;wr;rhl;ow;F bghWg;ghfpwPh;fs;.
Fw;wr;rhl;L vz;.3
ePh; Fw;w mYtyh;-2(jpU.o.My;gpul;) mYtyf
cjtpahsh; fUq;fy; rhh;gjpthsh; mYtyfk; vd;gth; 11.09.2008k
njjp 18.10 kzp Kjy; 21.50 kzp tiu fUq;fy; rhh;gjpthsh;
mYtyfj;ij Jiz Ma;t[f;FG mYtyh; jpUbey;ntyp J}j;Jf;Fo
fd;dpahFkhp khtl;lq;fs; ChHy; jLg;g[ kw;Wk; fz;fhzpg;g[j;Jiw
fhty; Jizf; fz;fhzpg;ghsh;, fhty; Ma;thsh; kw;Wk; fhty;
Mspeh;fSld; jpOh;r;nrhjid bra;jnghJ muR tUkhdk; U:.
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W.P.(MD).No.10562 of 2017
20870/- f;F gjpy; U:.10870/- ,Ug;gJ fz;Lgpof;fg;gl;lij
ePq;fs; mYtyfj;jpy; ntW ,lj;jpy; itj;jpUg;gjhfr; brhy;yp
13.09.2008k; njjp jpUkjp.ehnf];thp rhh;gjpthshplk;
bfhLj;jpUg;gjd; K:yk; U:.10000/- f;F bghWg;ghfpwPh;fs;.
Fw;wr;rhl;L vz;.4
ePh; Fw;w mYtyh;-2 (jpU.o.My;gpul;) fUq;fy;
rhh;gjpthsh; mYtyfj;jpy; 11.09.2008k; njjpa nkw;go
nrhjidapd;nghJ jq;fsplkpUe;j U:.5600/-f;F ePq;fs; ifa{l;lhf
bgw;wpUf;fyhk; vd;w Fw;wr;rhl;ow;F bghWg;ghfpwPh;fs;.”
3.The charges itself were framed by the Tribunal of Disciplinary
Proceedings, Madurai. While concluding the report the Tribunal held that the
charges against the Assistant, Sub-Registrar(in-charge) and the petitioner are
proved. Thereafter, the second respondent, after getting an explanation from the
petitioner, imposed the punishment of stoppage of increment for a period of two
years with cumulative effect. Challenging the punishment, the petitioner
preferred an appeal before the first respondent, who, after getting the views of
the Tamil Nadu Public Service Commission, confirmed the punishment
imposed by the second respondent. Aggrieved by the order passed by the first
respondent confirming the order of the second respondent, the above writ
petition is filed.
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4.The learned counsel appearing for the petitioner submitted that
there is a fundamental violation of procedure adopted by the Tribunal in the
course of enquiry proceedings. It is contended that the Rules provide that the
Tribunal shall frame appropriate charges, communicate them to the person
charged together with list of witnesses likely to be examined in respect of each
of the charges, copies of the complaints made by the complainant, copies of
statements taken from the witnesses which formed the basis on which the
Tribunal has framed the charge or charges against him. Stating that the copies
of the statement taken from the witnesses were not made available to the
petitioner, it is submitted by the counsel for the petitioner that the impugned
order is vitiated. With regard to the second charge against the petitioner, the
learned counsel submitted that the conclusion was purely based on presumption
and conjecture. Though it is admitted by the petitioner that he was having a sum
of Rs.5600/-, the petitioner submitted that the amount that was recovered from
him, was his personal money and that he brought the money to redeem his
jewels. Though the petitioner has produced relevant documents before the
enquiry officer, namely the notice issued by the financier, the Tribunal did not
accept his statements, came to the conclusion that the money which was taken
from him must be an ill-gotten money. Stating that valid explanations offered
by the petitioner was not considered and the conclusion was without assigning
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any valid reason for not accepting the explanation, it is contended that the
findings of the enquiry officer and the disciplinary authority are perverse and
therefore, this Court should interfere.
5.The learned counsel then pointed out that the respondents sought
opinion of the Tamil Nadu Public Service Commission and imposed the
punishment, on the basis of the opinion offered by the Tamil Nadu Public
Service Commission, without serving a copy of the opinion or after giving an
opportunity to the petitioner to submit his views. The learned counsel also
pointed out that there was an inordinate delay in initiation of proceedings after
the defects are pointed out during the inspection. It is admitted that the charge
memo was issued on 07.06.2010 and the enquiry commenced only on
19.02.2014. Since the petitioner has suffered denial of promotion for more than
10 years, the learned counsel submitted that serious prejudice was caused to the
petitioner by denying promotion for such a long time. He submitted that denial
of promotion for a long period should be considered as a punishment.
6.The learned counsel appearing for the respondents relying upon the
counter affidavit reiterated that there is no procedural violation either at the
time of holding enquiry or thereafter. The second respondent has taken a
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W.P.(MD).No.10562 of 2017
specific stand that the enquiry officer and the disciplinary authority came to
their conclusion on the basis of the documents and the submissions of the
witnesses marked and examined during the enquiry proceedings. This Court
has considered the report of the enquiry Commissioner as well as the order
passed by the disciplinary authority and the appellate authority. From the
enquiry report, this Court is unable to find any independent consideration of the
petitioner's explanation with regard to the charge and the petitioner was held
responsible with regard to the charge against him. The petitioner was held
responsible as if the money found from him was an ill-gotten money. This
Court is unable to find any independent consideration of the explanation
offered by the petitioner. There was no witness to complain that the petitioner
either demanded or accepted bribe during the course of enquiry. From the fact
that the petitioner was having a sum of Rs.5,600/- and on the date of inspection,
it was presumed that the money available with the petitioner must be an ill-
gotten money and that therefore, he is responsible for the same. Therefore, the
charge is based on presumption. When a specific explanation is offered by the
petitioner with supporting documents, it is the bounden duty of the respondents
to consider it.
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W.P.(MD).No.10562 of 2017
7.The learned counsel appearing for the petitioner relied upon the
judgment of this Court, in the case of R.SAKTHIVEL VS. DIRECTOR
GENERAL OF POLICE & ORS., reported in 2010 SCC Online Mad 6486 :
2011 Lab IC 1603 : (2011) 2 CWC 53. The relevant portion of the judgment is
extracted hereunder:
“40.As rightly contended by the learned counsel for the petitioner,
absolutely, there is nothing on record to indicate application of
mind by the third respondent, who is the disciplinary authority.
Though the respondents in their counter affidavit have contended
that the disciplinary authority, upon perusal of the records,
including the further representation, has come to the conclusion of
guilt of the petitioner, absolutely, there is no discussion, with
reference to the explanation offered by the petitioner, as to whether
there was any acceptable evidence, for the charge of demand of
bribe against the petitioner/Sub Inspector of Police.
8.Considering the charges and the materials that are produced before
this Court, this Court is able to see that the findings recorded by the enquiry
commission with regard to the second charge was based on the statement of the
witnesses. However, this Court find that there is total non-application of mind
by the disciplinary authority as well as the appellate authority as regards the
explanation offered by the petitioner. Hence, this Court is of the view that the
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findings in relation to the second charge, that the money that was recovered
from the petitioner on 11.09.2008 may be an ill-gotten money, is perverse and
hence, there is no scope for considering the second charge to impose any
punishment. This Court is inclined to consider the points raised by the learned
counsel for the petitioner with regard to the first charge. Rule 8(a) of Tamil
Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules of 1955, which
reads as follows:
“8(a)(i) Notwithstanding anything contained in rule
17 of the Tamil Nadu Civil Services (Discipline and Appeal)
Rules, the following procedure shall be adopted by the
Tribunal in conducting enquiries in cases of corruption and
also in cases of corruption combined with other charges. As
soon as the records relating to allegations of corruption or of
corruption combined with other charges against a Government
servant are received, the Tribunal shall frame appropriate
charges, communicate them to the person charged together
with list of witnesses likely to be examined in respect of each of
the charges, copies of the complaints made by the
complainants, copies of statements taken from the witnesses
which form the basis on which the Tribunal has framed the
charge or charges against him and with information as to the
date and place of enquiry. At the enquiry, oral and
documentary evidence shall be first adduced by the prosecution
and person charged shall be entitled to cross-examine the
prosecution witnesses and to explain any documents produced
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by the prosecution.
The person charged shall thereafter, within the time
allowed by the Tribunal, file a written statement of his defence
along with a list of witnesses whom he wishes to examine,
stating the points on which he proposes to examine each of
them, provided that he need not so specify the points for
examination in his own case, when he wishes to examine
himself as well. The oral and documentary evidence on his side
shall then be adduced. After the enquiry is completed, the
Tribunal shall hear the Prosecutor for Disciplinary
Proceedings and the person charged or permit them to file the
written briefs of their respective cases, if they so desire. A copy
of the written brief, if submitted by the Prosecutor for
Disciplinary Proceedings, shall be served on the person
charged, before he is required to submit his reply written brief.
The Tribunal shall, as far as possible, observe the basic rules
of evidence relating to the examination of witnesses and the
marking of documents.
(ii) For sufficient reasons to be recorded in writing,
the Tribunal shall have power to refuse to call a witness on
either side, or to summon, and examine any further witnesses,
or to call for, and exhibit any further documents. The
proceedings of the Tribunal shall contain a sufficient record of
the evidence.
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9.In this case, no doubt, the enquiry commission did not serve the
copies of the statement taken from the witness to the petitioner. The oral and
documentary evidence which are relied upon against the petitioner were not
furnished to the petitioner. Though it is a serious irregularity, the question is
whether the whole proceedings is vitiated. Similarly, the next contention was
about the failure to serve a copy of the opinion that was obtained from the
Tamil Nadu Public Service Commission, which was relied upon by the first
respondent before passing the impugned order. The learned counsel appearing
for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the
case of ORIENTAL BANK OF COMMERCE AND OHTERS VS.
S.S.SHEOKAND AND ANOTHER, reported in (2014) 5 Supreme Court
Cases 172. Wherein, the relevant portion is extracted hereunder:
“20.We have considered the submissions of both the
counsel. When we come to the question of imposition of
punishment on the respondent, what we find is that undoubtedly,
there was a serious allegation against him, and as it has been
held in the case of Disciplinary Authority-Cum-Regional
Manager (supra), such acts could not be condoned. At the same
time, we have also to note that the bank management itself had
taken the view in the initial stage that the action did not require a
major penalty. It is also relevant to note that the High Court was
also informed at the stage of review that the Bank was
considering imposition of a minor penalty. It is quite possible to
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W.P.(MD).No.10562 of 2017
say that the bank management did arrive at its decision to
maintain a major penalty at a later stage on its own, and not
because of the dictate of the CVC, but at the same time it has got
to be noted that the CVC report had been sought by the
management of the bank, and thereafter the punishment had been
imposed. As observed in the case of State Bank of India (supra),
may be that the Disciplinary Authority had recorded its own
findings, and had arrived at its own decision, but when this
advise from CVC was sought, it could not be said that this
additional material was not a part of the decision making
process. When this report was not made available to the
respondent, it is difficult to rule out the apprehension about the
decision having been taken under pressure. Any material, which
goes into the decision making process against an employee,
cannot be denied to him. In view of the judgment in the case of
Disciplinary Authority-cum- Regional Manager (supra), the
decision of the Bank could have been approved on merits,
however, the two judgments in the cases of Nagaraj Shivaraj
Karajgi (supra) and State Bank of India (supra) lay down the
requisite procedure in such matters, and in the facts of this case,
it will not be appropriate to depart from the dicta therein. On this
yardstick alone, a part of the judgment of the High Court
interfering with the punishment will have to be sustained.
10.The learned counsel then relied upon a unreported judgment of the
learned Single Judge of this Court in W.P.(MD)Nos.17990 and 18550 of 2013
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W.P.(MD).No.10562 of 2017
dated 17.07.2014, in the case of I.SHAHUL HAMEED AND OTHES – VS-
THE CHAIRMAN, PANDYAN GRAMA BANK, AND OHTERS, in a similar
situation where the punishment was on the basis of the report of Chief
Vigilance Officer, this Court, after noting that the views of the Chief Vigilance
Officer has influenced the appellate authority, held that it as a serious
irregularity to rest the findings on the basis of views of the Chief Vigilance
Officer, without furnishing the copies and the particulars to the petitioner. Since
the orders by the disciplinary authority and the appellate authority are without
assigning any independent assessment or reason but solely based on the report
of the enquiry commission, this Court is unable to discard the argument of the
learned counsel for the petitioner.
11.The Hon'ble Supreme Court, in the case of the R.Sakthivel above
referred to, has held that the decision of the disciplinary authority should be
supported by reasons and if it is passed without assigning any reason,
neglecting the explanation cannot be sustained. However, there is an important
aspect which should be looked into before considering the issue, whether the
impugned orders are to be quashed and the matter should be remitted. When the
charge memo was issued to the petitioner, the petitioner submitted his written
explanation before the Tribunal. From the explanation offered by the petitioner,
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it is revealed that the petitioner admitted that there was a shortage on
11.09.2008 at the time of inspection and that the money was found in a different
place in the same office and on the next working day, was handed over to the
Sub-Registrar. In these circumstances, the issue that should be considered is
whether the petitioner was guilty of any misappropriation with an intention to
cause loss to the Registration Department. No motive is alleged and the charge
itself reads making the petitioner responsible for the irregularity.
12.No witness is examined or no materials produced either before the
enquiry commission or before the disciplinary authority to suggest
misappropriation. Even the charge framed against the petitioner is not on for
misappropriation. In such circumstances, though conclusion was on the basis of
inference drawn from various circumstances, this Court is unable to attribute
any motive against the petitioner. It is to be noted that the petitioner was also
charged for holding a sum of Rs.5,600/- on the same day at the time of
inspection. Therefore, the charges and available materials can lead to the
conclusion that the petitioner is not guilty of any serious misconduct. As
pointed out earlier, this Court is unable to find any evidence to prove the
second charge against the petitioner and therefore, the findings of the
disciplinary authority as well as the appellate authority with regard to the
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W.P.(MD).No.10562 of 2017
second charge are perverse and the decision based on such findings vitiate the
impugned orders. As regards the first charge against the petitioner, this Court
though expressed its view that there are several irregularities in the decision
making process, having regard to the explanation offered by the petitioner, this
Court finds it fit to reduce the punishment. Accordingly, the impugned order of
the first respondent confirming the order of the second respondent is quashed.
However, the punishment is reduced to be one of stoppage of increment for a
period of two years without cumulative effect. To that extent, the writ petition is
partly allowed. No costs.
01.10.2021
Index : Yes / No
Internet: yes / No
Ns
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.
To
1.The Additional Chief Secretary to
the Government,
Commercial Taxes and Registration Department,
Secretariat, Fort. St George, Chennai.
2.The Inspector General of Registration,
Chennai-28
3.The District Registrar,
Marthandam
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W.P.(MD).No.10562 of 2017
S.S. SUNDAR, J.,
Ns
W.P.(MD).No.10562 of 2017
01.10.2021
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