Madras High Court
The Secretary To Government vs M.Rajarathinam on 30 June, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.06.2022
CORAM
THE HONOURABLE MR. JUSTICE PARESH UPADHYAY
and
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
W.A.No.1547 of 2022
and C.M.P. No.10193 of 2022
1.The Secretary to Government,
Municipal Administration and Water Supply
Department, Secretariat,
Chennai – 9.
2.The Commissioner of Municipal Administration,
Ezhilagam Annexe Building, VI Floor,
Chepauk, Chennai – 5. .. Appellants
Vs.
M.Rajarathinam .. Respondent
Appeal filed under Clause 15 of the Letters Patent against the
order dated 12.08.2020 in W.P.No.8374 of 2013.
For Appellants .. Mr.Abishek Moorthy,
Govt. Advocate
JUDGMENT
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(Delivered by PARESH UPADHYAY, J.)
Challenge in this appeal is made to the order dated 12.08.2020
recorded on W.P. No.8374 of 2013. This appeal is by the respondents
in writ petition – State Authorities.
2. Learned Government Advocate has submitted that the
punishment of reduction of pension of Rs.200/- for 12 months was
challenged by the writ petitioner, years after the punishment period
was over and therefore the writ Court ought not to have exercised
discretion. It is submitted that the punishment order was in due
compliance of the statutory provisions and principles of natural
justice and therefore the writ petition should not have been allowed.
It is submitted that this appeal be entertained.
3. Having heard learned Government Advocate for the appellant
and having considered the material on record, this Court finds as
under:-
3.1 It is not in dispute that the writ petitioner had attained the
age of superannuation on 31.03.2002. He retired from the post of
Revenue Inspector which is indicated to be Class II post. For that
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post, Commissioner of Municipal Administration - second respondent
in the writ petition is stated to be the disciplinary authority. For the
alleged misconduct of the period prior to the year 2000, the writ
petitioner was issued with a charge memo on 15.11.2000. On
conclusion of the departmental enquiry, enquiry officer recorded
finding to the effect that the charges against the writ petitioner are
not proved. The authorities sat tight over that enquiry report. The
writ petitioner retired on 31.03.2002. Inspite of that, on one hand
neither the enquiry report, wherein finding was recorded by the
enquiry officer in favour of the writ petitioner was being acted upon,
and on the other hand his retirement dues were also not being paid
to him. It is under these circumstances, the writ petitioner
approached this Court by filing W.P.No.6888 of 2006, on which this
Court, on 10.03.2006 gave direction to take appropriate decision with
regard to pending departmental enquiry. The State readily obliged.
Within ten days, the State passed an order to the effect that it differs
with the finding recorded by the enquiry officer in the year 2002 and
final order was passed on 04.12.2007 ordering reduction of pension
of Rs.200/- for 12 months.
3.2 We have not examined the impugned order from the view
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point of the quantum of punishment but the sustainability of the said
punishment order is examined from the view point of it being just
and proper in procedure, and whether it is in compliance of the rules
holding the field. Learned single Judge has found the impugned
punishment order unsustainable on the ground that it is the second
respondent – Commissioner, who was the competent authority
(disciplinary authority) and therefore, the order passed by the
Secretary to the Government was, in substance, usurping the powers
of the disciplinary authority by the appellate authority and therefore
the said order is bad and it is set aside. We find that this reason is
unsustainable. Once the concerned employee has retired, the only
punishment which can be imposed is reduction of pension and that
punishment can not be imposed by any authority, other than
Government. Had that order been passed by the Commissioner, it
would have been termed as an order passed by an incompetent
authority. Had that order been passed by the Commissioner thought
of imposing any punishment other than reduction of pension, such a
contingency is not contemplated under the Rules and after the
retirement, no other punishment could have been imposed.
Therefore, we do not agree with the reasons recorded by learned
single Judge to set aside the punishment order.
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4. Though, as noted above we do not agree with the reasons
recorded by learned single Judge, we also record that the final
conclusion arrived at by learned single Judge, in the facts of this case
, need not be interfered with. It is for the following reasons.
4.1 The punishment of reduction of pension by the State needs
to be preceded by consultation with the Tamil Nadu Public Service
Commission. The same is not done in this case. Therefore, there is
breach of statutory provision, to be precise, Rule 9 of the Tamil Nadu
Pension Rules.
4.2 There is an additional factor. The punishment is imposed
in the departmental enquiry, where there was already finding by the
enquiry officer to the effect that the charges against the writ
petitioner are not proved. Had the competent authority –
Commissioner or State as the case may be, were concerned for
writing dissenting view with the finding of the enquiry officer, which
was well within their right, they could have done it at the relevant
time. However, inaction on the part of the respondent authorities was
questioned before this Court by filing W.P. No.6888 of 2006, on which
order was passed on 10.03.2006 and within ten days, the authorities
decided to defer with the finding recorded by the enquiry officer. We
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find that this was arbitrary exercise of power.
4.3 We further find that, the nature of allegations against the
writ petitioner were such, where, whether there should have been
departmental enquiry at all, is also an issue, however not only the
departmental enquiry was conducted, that was treated to be so grave
that it was kept pending even years after his retirement. We find
that, on facts, this could not have been done by the State.
4.4 We also find that, though the finding of the enquiry officer
was in favour of the writ petitioner, before passing the final
punishment order no notice was given to the petitioner to put his
case qua the dissenting view recorded by the Government in that
regard. The punishment order was therefore in breach of principles
of natural justice.
4.5 On conjoint consideration of the above we arrive at the
conclusion that, the punishment order dated 04.12.2007 was in
breach of statutory rules, was in breach of principles of natural
justice and in any case was arbitrary exercise of power by the
authorities.
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4.6 For all the above reasons, we hold that the impugned
punishment order dated 04.12.2007 is unsustainable and is rightly
set aside by learned single Judge.
5. For the above reasons, though we dismiss this writ appeal,
we note that the punishment dated 04.12.2007 needs to be set aside
for the reasons recorded above and not for the reasons which are
recorded by the learned single Judge in the order under challenge.
6. This writ appeal is dismissed in above terms. No costs.
Connected miscellaneous petition would not survive.
(P.U.J.) (J.S.N.P.J.)
30.06.2022
Index:No
mmi/6
PARESH UPADHYAY,
J.
https://www.mhc.tn.gov.in/judis
and
J.SATHYA NARAYANA PRASAD, J.
mmi
W.A.No.1547 of 2022
30.06.2022
https://www.mhc.tn.gov.in/judis
