Madras High Court
Dr.L.Ramalingam vs The State Of Tamil Nadu on 22 April, 2022
W.P.No.32567 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2022
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.No.32567 of 2013
Dr.L.Ramalingam, B.V.Sc.,
Assistant Director,
Animal Husbandry (Retd.),
No.7, Visalakshi Nagar, IInd Street,
Manojipatti – post, M.C. Road,
Thanjavur – 613004. ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Animal Husbandry, Dairying and Fisheries Department,
Fort St.George, Chennai – 600009.
2.The Commissioner and Director of Animal Husbandry
and Veterinary Services, Chennai – 600006. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus, calling for the records
from the first respondent relating to G.O.(D).No.256, Animal Husbandry,
Dairying and Fisheries (AH.1) Department dated 29.12.2011, rejecting the
review petition filed by the petitioner and to quash the same consequently
direct the first respondent to give the monetary benefits to the petitioner to
the Posts of Deputy Director and Joint Director.
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W.P.No.32567 of 2013
For Petitioner : Mr.C.D.Johnson
for Mr.S.Baskaran
For Respondents : Mr.T.Chezhiyan,
Additional Government Pleader
ORDER
The petitioner herein, while being a part of the Committee for
purchase of Ayurvedic, Siddha and veterinary drugs and medicines for the
year 2001-2002 along with four other members, was levelled with two
charges through the Charge Memo dated 11.01.2005, in the following
manner:-
“1) Colluded with Dr.V.Subramanian, Joint Director of
Animal Husbandry, he has sent letters to 13 Companies without
verifying the market of drugs for the past 3 years, market price and
potency of drugs.
2) Purchased 7 items of drugs without the label “Government
supply Not for Sale”.
Thus, he has violated rule 20 of Tamil Nadu Government
Servants Conduct Rule 1973.”
2. In the inquiry, the Inquiry Officer had found both the charges to
have been 'not proved'. However, the Disciplinary Authority had deviated
from the findings of the Inquiry Officer, through his proceedings dated
24.11.2008 and imposed the penalty of cut in pension of Rs.50/- per month,
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W.P.No.32567 of 2013
for a period of six months. As against the punishment, the petitioner has
given a representation for re-consideration and subsequently, had filed a
Writ Petition in W.P.No.29116 of 2010 whereby, this Court by an order
dated 22.12.2010, had directed the first respondent to consider the said
representation on merits and in accordance with law, within a stipulated
time. Consequently, the respondents had passed the order in G.O.(D).No.256
Animal Husbandry, Dairying & Fisheries (AH1) Department dated
29.12.2011, rejecting the petitioner's representation. This order is under
challenge in the present Writ Petition.
3. The learned counsel for the petitioner submitted that all the five
members of the Committee were subjected to identical charges and in the
case of co-delinquent namely Dr.P.Nedunchezhian, this Court had quashed
the charge memo mainly on the ground that when the Government had
deviated from the Inquiry Officer's findings, no reasons were assigned.
4. The learned Additional Government Pleader appearing for the
respondents submitted that since the petitioner is estopped from challenging
the order of punishment, since he has accepted the punishment.
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W.P.No.32567 of 2013
5. It is not in dispute that the charges relating to the co-delinquent
(viz.,) Dr.P.Nedunchezhian and the petitioner are one and the same. When
the co-delinquent Dr.P.Nedunchezhian had challenged the punishment
before this Court in W.P.No.23868 of 2009 ['Dr.P.Nedunchezhian Vs. The
State of Tamil Nadu'], the learned single Judge of this Court had quashed
the punishment through an order dated 22.11.2021, by holding as follows:-
..... “12. A careful reading of the aforesaid decisions cited supra
clearly indicates that if the Disciplinary Authority disagrees with the
findings of the enquiry officer, should mention the reason for such
disagreement. The disciplinary authority, at the same time, has to
communicate to the delinquent officer the reasons for disagreeing with
the findings of the enquiry officer and thereafter, the authority
concerned shall proceed and pass the final orders.
13. On the facts of the present case on hand, the disciplinary
authority has not recorded reasons for disagreement and the show
cause notice was also served on the petitioner without giving any
reasons for such disagreement, therefore by relying upon the decisions
of Hon'ble Supreme Court cited supra, the said show cause notice
served on the petitioner is liable to be quashed.
14. At this juncture it is also relevant to rely upon the decision
of this Court, wherein this Court has passed an order while deciding
the case of an identical issue. The relevant portion of the order is
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W.P.No.32567 of 2013
extracted below;
In the case of C.Devendhiran Vs. The Deputy Inspector
General of Police, Villupuram Range (W.P.No. 150 of 2013)
reported in 2020 (2) WLR 332.
“13. The Learned Senior Counsel for the Writ Petitioner
has relied upon the decision reported in 1989 writ law
reporter 274 considered rule 6(1) of TNPSS (D&A) Rules
and it has been held as follows at para 3 and 4 of the said
judgment.
"The rule enjoins the concerned authority to consider the
three aspects set out therein specifically. Unless the
appellate authority considers them it cannot be said that it
has carried out its duties properly. The Supreme Court
had occasion to discuss a similar question under R.27(2)
of the Central Civil Services (Classification, Control and
Appeal) Rules, 1965. Dealing with the word 'consider'
used in the said rule, the Supreme Court observed that the
word 'consider' implies due application of mind-vide
R.P.Bhatt v. Union of India. The following paragraph in
the above judgment of the Supreme court can be usefully
referred to with advantage-
"The word 'consider' in R.27(2) implies 'due application
of mind'. It is clear upon the terms of R.27(2) that the
appellate authority is required to consider (1) whether the
procedure laid down in the Rules has been complied with;
and if not, whether such non-compliance has resulted in
violation of any provisions of the Constitution or in
failure of justice; (2) Whether the findings of the
disciplinary authority are warranted by the evidence on
record; and (3) Whether the penalty imposed is adequate
and thereafter pass orders confirming, enhancing etc, the
penalty, or may remit back the case to the authority which
imposed the same. R27(2) casts a duty on the appellate
authority to consider the relevant factors set forth in
clauses (a), (b) and (c) thereof.
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W.P.No.32567 of 2013
There is no indication in the impugned order that the
Director General was satisfied as to whether the procedure
laid down in the Rules had been complied with and if not,
whether such non-compliance had resulted in violation of
any of the provisions of the Constitution or in failure of
justice. We regret to find that the Director General has
also not given any finding on the crucial question as to
whether the findings of the disciplinary authority were
unwarranted by the evidence on record. It seems that he
only applied his mind to the requirement of clause (2) of
R.27(2) viz., whether the penalty imposed was adequate or
justified in the facts and circumstances of the present case.
There being non-compliance with the requirements of
R.27(2) of the Rules the impugned order passed by the
Director General is liable to be set aside."
14. In another judgment of this Court in the case of
K.Kandasamy Vs. Deputy I.G. of police, reported in
2006 (4) MLJ 1382 in para 7, this Court has held as
follows :-
“It is seen from the aforesaid portion of the impugned
order that the Appellate Authority did not deal with
any of the grounds of appeal raised by the petitioner.
A departmental appeal is a continuation of the
original proceedings. It is needless to point out that
the last opportunity available for a delinquent, to
canvass his case on merits, is at the appellate stage.
After the appeal, a delinquent loses his right to
challenge any disciplinary proceedings on merits,
since the scope of interference on a revision or on a
writ petition is very limited. Therefore, the rules
themselves contemplate Appellate Authorities to go
into the factual details and consider all the grounds
of appeal before deciding an appeal. Unfortunately,
the first respondent has chosen to dismiss the appeal
by a nonspeaking order and hence, the Appellate
Authority's order is liable to be set aside.”
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W.P.No.32567 of 2013
15. It is also pertinent to refer the Judgment of the
Hon'ble Supreme Court in Narinder Mohan Arya
Vs.United India Insurance Company Ltd, reported in
2006(4) SCC 713,wherein the Hon'ble Supreme Court
has held that even when an Appellate Authority agrees
with the findings of the Disciplinary Authority in a
departmental enquiry, it should give reasons so as to
enable the Writ Court to ascertain there was an
application of the mind as required by the relevant rules.
The relevant portion is extracted hereunder;
“33. An appellate order if it is in agreement with
that of the disciplinary authority may not be a
speaking order but the authority passing the same
must show that there had been proper application of
mind on his part as regard the compliance of the
requirements of law while exercising his jurisdiction
under Rule 37 of the Rules.”
16. In view of the decisions cited supra and Rule
6(1) of Tamil Nadu Police Subordinate Service
(Discipline & Appeal ) Rules, it is clear that the appellate
authority is the final fact finding authority and he is
expected to assess the evidences available on record by due
application of mind and also record the reasons even
though not elaborately, but indicating as to how the
appellate authority has satisfied himself with the reasons
given by the disciplinary authority. When Rule 6 (1) of
Tamil Nadu Police Subordinate Service (Discipline &
Appeal ) Rules mandates that the appellate authority
should consider all those materials, in the instant case, no
such finding has been given by the appellate authority
except simply saying that he has perused some documents
and came to the conclusion that the punishment awarded
by the 1st respondent is not an excessive and rejected the
same.
17. Considering the facts and circumstances of the
case and also the decisions rendered by the Hon'ble
Supreme Court and this Court cited supra, this Court
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W.P.No.32567 of 2013
with no hesitation, has come to the conclusion that the
second respondent/ appellate authority has passed a
cryptic order/non-speaking order without considering the
issues that were raised by the petitioner in his Appeal. As
rightly pointed out by the learned senior counsel for the
petitioner, the order of the appellate authority/ 2nd
respondent is not in conformity with the rule 6(1) of
TNPSS (D&A) Rules.
18. In fine, the impugned order in RC.
No.047950/AP1(2)/2000, dated 03.07.2010 passed by the
second respondent in respect of P.R. No. 67/ 2009 is
quashed and the matter is remitted to second respondent
to consider afresh and to pass orders thereon, on merits
and in accordance with law, within a period of twelve (12)
weeks from the date of receipt of the copy of this order.
19. With the above observations and directions,
this writ petition is disposed of. No costs.”
15. Considering the facts and circumstances of the case and the
decisions cited supra, this court is of the view that the show cause
notice and the rejection order issued by the 1st respondent are without
any reason and the same are illegal and contrary to the decisions of the
Hon'ble Supreme Court and also to the Government letter in Lr.No.
105983/Per.N/90, dated 08.02.1994 and can be construed as
cryptic/non speaking order. Hence, on this ground, the impugned
order is liable to quashed. Further, by considering the fact that the
punishment was imposed on the petitioner as early in the year 2008,
this Court is of the opinion that at this distance point of time, it would
not be appropriate for this Court to remit the matter to the authorities
concerned to consider afresh.”
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W.P.No.32567 of 2013
6. When this Court had quashed the punishment pertaining to the
co-delinquent who holds similar charges, the petitioner also would be
entitled for the same order.
7. Insofar as the objection raised by the learned counsel for the
petitioner that in view of the acceptance of the punishment, he cannot
challenge the order of punishment is concerned, this Court is not in
agreement to such a submission. When the procedure for inquiry is deviated
and consequently, a punishment is imposed in an illegal manner, the mere
subsequent acceptance of the punishment by the delinquent, will not justify
the improper or illegal inquiry conducted and therefore, would not be an
estoppel for the delinquent to challenge the punishment. Now that this
Court had earlier found the punishment based on similar set of charges for a
co-delinquent, to be illegal and has quashed the same, the petitioner herein,
is also entitled to succeed in a similar manner.
8. Accordingly, the impugned orders passed by the first respondent in
G.O.(D).Nos.335 and 256 Animal Husbandry, Dairying & Fisheries (AH1)
Department dated 24.11.2008 and 29.12.2011 respectively, are hereby
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W.P.No.32567 of 2013
quashed. The petitioner shall submit a representation to the respondents
seeking notional promotion, within a period of two weeks from the date of
receipt of a copy of this order. On receipt of such a representation, the
respondents shall consider the same and grant notional promotions to the
posts of Deputy Director and Joint Director of Fisheries, from the date when
his immediate junior was promoted, together with all monetart benefits.
Such orders shall be passed, within four weeks from the date of the
petitioner's representation.
9. With the above directions, this Writ Petition stands allowed. No
costs.
22.04.2022
Index : Yes/No
Internet : Yes/No
Sni
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W.P.No.32567 of 2013
To
1.The Secretary to Government of Tamil Nadu,
Animal Husbandry, Dairying and Fisheries Department,
Fort St.George, Chennai – 600009.
2.The Commissioner and Director of Animal Husbandry
and Veterinary Services, Chennai – 600006.
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W.P.No.32567 of 2013
M.S.RAMESH,J.
Sni
W.P.No.32567 of 2013
22.04.2022
https://www.mhc.tn.gov.in/judis
