Madras High Court
A.Govindan vs The State Of Tamil Nadu on 21 March, 2022
W.P(MD).No.1376 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P(MD).No.1376 of 2019
and
W.MP(MD)Nos.1188 of 2019 and 9093 of 2021
A.Govindan ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep by its Secretary to Government,
School Education Department,
Chennai.
2.The Director of School Education,
O/o.The Director of School Education,
DPI Complex,
College Road,
Chennai.
3.The Joint Director of School Education(Personnel)
O/o.The Director of School Education,
DPI Complex,
College Road,
Chennai.
4.The Chief Educational Officer,
O/o.The Chief Educational Office,
1
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W.P(MD).No.1376 of 2019
Ramanathapuram,
Ramanathapuram District.
5.The District Educational Officer,
O/o.The District Educational Office,
Paramakudi,
Ramanathapuram District. ... Respondents
PRAYER: Writ Petition under Article 226 of the Constitution of India, to
issue a Writ of Certiorari, to call for the records relating to the impugned
order passed by the 3rd respondent in his proceedings Na.Ka.No.
60570/A3/E3/2012, dated 28.12.2018 impugned order was served to the
petitioner only on 21.01.2019 and quash the same as illegal.
For Petitioners : Mr.C.Venkateshkumar
for M/s.Ajmal Associates
For Respondents : Mr.G.V.Vairam Santhosh
Additional Government Pleader
ORDER
The show cause notice issued by the third respondent pursuant to
the direction issued by the first respondent Government in proceedings
dated 28.12.2018 is under challenge in the present writ petition.
2.The petitioner was appointed as a Junior Assistant and promoted
up to the post of Superintendent. The allegations were raised against the
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W.P(MD).No.1376 of 2019
petitioner is that he had demanded and accepted the bribe, while he was
working as Superintendent in the office of the Assistant Elementary
Educational Officer, Mandapam Union, Ramanathapuram District. A
charge memo was issued to him and the petitioner defended the
allegations. The punishment of stoppage of increment for three years
with cumulative effect was imposed with reference to the allegations of
demand and acceptance of bribe by the petitioner. The petitioner
preferred an appeal and the matter was remanded back to the original
authority. Again the punishment of stoppage of increment was imposed
for a period of two years with cumulative effect. The petitioner preferred
an appeal, which is pending before the Director of School Education.
During the pendency of the said appeal before the Director of School
Education, the third respondent now issued the impugned show cause
notice stating that the authorities have taken a decision to review the
punishment by invoking Rule 36 of Tamil Nadu Civil Service(Discipline
and Appeal) Rule, and further stating that it is proposed to impose the
punishment of compulsory retirement.
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W.P(MD).No.1376 of 2019
3.The learned counsel for the petitioner mainly contended that the
third respondent has no jurisdiction to issue show cause notice, as the
appeal is pending before the Director of School Education against the
order of punishment. Secondly, the punishment was already imposed by
the third respondent against the petitioner, appeal preferred before the
second respondent Director of School Education, which is pending and
the third respondent has no authority to issue show cause notice to
review the order of punishment originally passed by him, in view of the
power under Rule 36 of Tamil Nadu Civil Services (Discipline and
Appeal) Rules. Thirdly, the learned counsel for the petitioner contended
that there is no reason for review and on that ground also the show cause
notice is liable to be set aside. In this regard, the learned counsel for the
petitioner relied on the order passed by this Court in W.A.No.1047 of
2011, dated 06.07.2017. The relevant paragraphs are extracted
hereunder:
“14.If the reasons are not spelt out, the employee
concerned will not be able to furnish an effective reply. The
show cause notice is not intended to be an empty formality. It
is squarely intended to convey to the man concerned the
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W.P(MD).No.1376 of 2019
reasons for which the proposed action is either taken or
initiated. When show cause notice spells out the reasons, the
employee concerned will have an effective opportunity to
neutralize those reasons that weighed with the Authority
which has drawn the show cause notice. Therefore, a bald,
laconic or non reasoned show cause notice reduces itself to a
mere empty formality and in substance, they will not be
providing a meaningful or truthful opportunity for the person
concerned to set forth his objections in respect thereof. When
no such opportunity is thrown to the employee, the very
exercise of drawing a show cause notice reduces its utility
and effectiveness. It becomes an un-productive exercise for
lack of substance and meaning.
15.For sheer lack of reasons in the show cause notice,
the final Appellate Order passed on 14.10.2010 cannot be
sustained because when the substratum collapses, the
superstructure has to necessarily come down. We have
therefore, no hesitation to hold that the show cause notice
drawn in the instant case on 14.06.2010 by the Appellate
Authority is not sustainable.
4.The learned Additional Government Pleader objected the
contentions raised on behalf of the petitioner by stating that the
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W.P(MD).No.1376 of 2019
allegations against the petitioner was demand and acceptance of bribe,
which was proved and the original authority imposed the punishment of
stoppage of increment for three years, which was subsequently, modified
as stoppage of increment for two years. Thus, the Government found that
the punishment is not in proportionate with the gravity of the allegations
of corruption which was proved and accordingly, initiated the review
proceedings under Rule 36 of Tamil Nadu Civil Service(Discipline and
Appeal) Rules.
5.Pursuant to the directions issued by the first respondent
Government, the third respondent issued a show cause notice. Therefore,
the petitioner has to submit his objections/explanations, if any and
thereafter, final orders will be passed by the first respondent,
Government in accordance with the rules in force. Thus, the question of
jurisdiction does not arise at all, as the show cause notice has been issued
only pursuant to the directions issued by the Government and it is not suo
motu review proceedings by the third respondent and it is the suo motu
review proceedings by the first respondent Government.
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W.P(MD).No.1376 of 2019
6.Considering the arguments as advanced by the respective learned
counsels appearing on behalf of the parties to the lis on hand, let us
consider the scope of Rule 36 of Tamil Nadu Civil Service (Discipline
and Appeal) Rules. The State Government is empowered to initiate suo
motu review proceedings at any point of time and there is no time limit
for initiation of suo motu proceedings by the Government. However, the
Head of the Department is empowered to initiate review proceedings
within a period of six months from the date of passing of the final order
by the disciplinary authority. Sub-Class(2) of Rules 36, enumerates that:-
“(2)No proceeding for revision shall be commenced-
(a).where no appeal has been preferred, before the
expiry of the period of limitation for an appeal, or
(b).Where an appeal has been preferred, before the
disposal of such appeal.
(c).an application for revision shall be dealt with in the
same manner as if it were an appeal under these Rules.”
No proceeding for revision shall be commenced, in case where an appeal
is pending before the authority.
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W.P(MD).No.1376 of 2019
7.The very purport of Rule ensure that the Head of the Department
or the Government, as the case may be, shall initiate revision
proceedings only if no appeal is pending before the said authority. The
purpose and object of the Rule is to ensure that no power of revision is
exercised, during the pendency of the appeal before the said authority.
8.In order to remove the ambiguity to clarify the Rule in a clear
manner, it is to be noted that if the Head of the Department proposes to
initiate revision proceedings within a period of six months, then no
appeal should be pending before the Head of the Department, at the time
of invoking power under rule 36 of the Rules for revision.
Simultaneously, if any appeal is pending before the Government, then the
Government cannot invoke the powers under rule 36 for revision.
However, if no appeal is pending before the Government and if any
appeal is pending before the Subordinate authorities, the said pendency
would not be a bar for the Government to invoke the power of revision
conferred under Rule 36 of Tamil Nadu Civil Service (Discipline and
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W.P(MD).No.1376 of 2019
Appeal) Rules. The Government is the ultimate authority for invoking
Rule 36 and no time limit has been prescribed. Therefore, pendency of an
appeal before any subordinate authority will not be a bar for the
Government to invoke Rule 36, as the pendency of the appeal or decision
taken in an appeal would not affect the revision proceedings, if any
initiated by the Government under Rule 36 of Tamil Nadu Civil Service
(Discipline and Appeal) Rules. In other words, even in case, an appeal is
pending before the Head of the Department and a decision is taken in a
particular manner, those decisions will not bind on the Government, as
the Government is the final authority in disciplinary proceedings, as far
as the Government employees are concerned.
9.Thus, the very intention of the Rule is to ensure that the right of
appeal by aggrieved persons is protected. In order to protect the right of
appeal, restriction is imposed for exercising the power of revision, if at
all an appeal is pending before the Head of the Department, then he has
to decide the appeal and thereafter, if necessary invoke the power of
revision under Rule 36. In the event of not deciding the appeal and
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W.P(MD).No.1376 of 2019
invoking the revision power, the right of an appeal conferred under
Rules, is taken away and therefore, Rule 36 contemplates certain
restriction for invoking the power of Rule 36, during the pendency of the
appeal before the Head of the Department. However, the pendency of the
appeal before the Head of the Department cannot be a bar for the
Government to invoke the power of revision which is otherwise provided
independently to the State Government under Rule 36 (1) of Tamil Nadu
Civil Service (Discipline and Appeal)Rules. Restrictions imposed in Sub
Class(2) of Rule 36 is independent, however, Rule 36 (1) provides the
State Government to exercise the power of revision not interfering with
the order of punishment passed by any authority. The only ground is that
before passing final order in the revision proceedings, an opportunity
must be provided to the employee concerned.
10.In the present case, the petitioner has challenged the show cause
notice. The show cause notice per se would not provide a cause of action
for filing the writ petition. This apart, the contention of the petitioner is
that the third respondent has no jurisdiction, is irrelevant. In view of the
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W.P(MD).No.1376 of 2019
fact that the impugned show cause notice was issued based on the
directions issued by the first respondent, which is clarified by the
respondent in their counter statement itself. Thus, the Joint Director is
not at all the authority to invoke the power of revision under Rule 36 of
the Discipline and Appeal Rules. He is the only authority, who issued the
show cause notice, pursuant to the directions issued by the Government
and on receipt of any explanation from the petitioner along with
documents, he has to place the file before the first respondent
Government for taking an appropriate decision on merits and in
accordance with law. This being the procedure adopted, this Court do
not find any infirmity as such.
11.With reference to the judgment cited by the learned counsel for
the petitioner regarding the scope of Rule 36 of Tamil Nadu Civil
Services (Discipline and Appeal) Rules, has not been considered by the
Hon'ble Division Bench in the said case. The said case is relatable to
CCS(CCA) Rules, 1965 and it is no way connected with the Tamil Nadu
Civil Services (Discipline and Appeal) Rules. The Central Government
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W.P(MD).No.1376 of 2019
and the State Government are having different and distinct Service Rules
and therefore, the said judgment delivered in respect of the Central Rules
cannot be of any avail to the petitioner for the purpose of interpreting the
Rule 36 of the Discipline and Appeal Rules. Further the judgment states
that the show cause notice cannot be an empty formality and it must be
contained with reasons.
12.Two views are possible, in cases where show cause notices are
issued by the competent authorities. The writ petitions are filed on the
ground that the competent authorities have already pre-determined the
issues by stating the proposed views or proposed actions. The other set
of writ petitions are filed on the ground that the authority has not
assigned any reason in the show cause notices, thereby depriving the
rights of the aggrieved persons to submit their explanations. If the
questions are raised in the absence of any reason, the employee may not
be in a position to submit his explanations. In both the cases, this Court
is of the considered opinion that the nature of details and the proposed
actions pointed out by the competent authorities are to be considered.
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W.P(MD).No.1376 of 2019
Even in cases where no reasons are stated, the Court has to consider
every factors, whether already the proceedings were progressed and those
factors are to be made available to the employees or otherwise.
Therefore, all the facts and circumstances relevant to the show cause
notices are to be considered before forming of an opinion.
13.Thus, in cases where reasons are stated for revision, such
revisions are to be construed as proposed reasons and the delinquent
employee is entitled to submit his explanations/objections regarding the
reasons stated in the show cause notices. However, all such reasons
stated in the show cause notices are proposed reasons or actions or
proposed punishments. Such proposal is subject to the consideration of
the explanations/objections, if any, filed by the delinquent Officers.
However, those reasons stated in the show cause notices by the
competent authorities cannot be a ground to quash the show cause notice.
In certain cases, show cause notices are issued after completion of
enquiry and enquiry report, in such cases, much reasons may not be
required to be furnished in the show cause notices, as the delinquent
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W.P(MD).No.1376 of 2019
employees are aware of the facts and circumstances. Such show cause
notices are issued for a limited purpose of providing further opportunity
to the delinquent employee. The delinquent employee is entitled to
submit his explanation/objection in respect of the other left out grounds
or any new grounds for the purpose of defending his case. Thus, it is not
necessary that the show cause notices must be issued with all the relevant
factors and all the reasons. The show cause notices are not to be
compared with the final orders and it is only an opportunity provided
with reference to the facts already placed between the parties. If at all any
doubt arises, the aggrieved persons may seek clarifications or submit his
explanations denying the allegations or otherwise, in order to establish
his innocence.
14.In the present case, the petitioner has already imposed with the
punishment and preferred an appeal and the punishment was modified
and again the said modified punishment was confirmed and an appeal is
filed. Therefore, the entire facts and findings of the enquiry report are
available with the petitioner and he is fully aware of the facts and
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W.P(MD).No.1376 of 2019
circumstances of the case. Therefore, such grounds are untenable. This
apart, show cause notice contained certain reasons, In fact it is stated in
the show cause notice that the documents, deposition of witness and
arguments were considered and a finding was arrived that the allegations
of demand and acceptance of corruption is partly proved against the
petitioner and such finding was given by the Tribunal for Disciplinary
proceedings. When the Tribunal for disciplinary proceedings have made
a finding that the allegations of demand and acceptance of corruption is
partly established and the punishment of stoppage of increment was
considered as a lesser punishment, the Government has initiated suo
motu revision against the petitioner. Therefore, this Court is of the
considered opinion that there is no infirmity as such and the reasons
furnished in the show cause notice are sufficient enough for the
petitioner to defend his case or to submit his explanation or objections if
any.
15.Regarding the allegations of demand and acceptance of bribe,
the petitioner had participated in the trial conducted by the Tribunal for
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W.P(MD).No.1376 of 2019
disciplinary proceedings. When he is fully aware of the trial proceedings
and aware of the findings of the Tribunal, no further reasons are
necessary to quash the show cause notice invoking the power of revision
under Rule 36 of the Discipline and Appeal Rules. This being the factum,
the petitioner is at liberty to submit his explanation/objection if any, to
the respondent, who in turn has to place the files to the competent
revisional authority under Rule 36 of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules/first respondent and final decision is to be
taken by the first respondent on merits and in accordance with law, by
considering the explanations or otherwise, if any submitted by the
petitioner. The respondents are directed to complete the said exercise as
expeditiously as possible.
16.With these observations, this Writ Petition is dismissed. No
costs. Consequently, connected miscellaneous petitions closed.
21.03.2022
Index:Yes/No
Internet:Yes/No
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W.P(MD).No.1376 of 2019
To
1.The Secretary to Government,
School Education Department,
Chennai.
2.The Director of School Education,
O/o.The Director of School Education,
DPI Complex,
College Road,
Chennai.
3.The Joint Director of School Education(Personnel)
O/o.The Director of School Education,
DPI Complex,
College Road,
Chennai.
4.The Chief Educational Officer,
O/o.The Chief Educational Office,
Ramanathapuram,
Ramanathapuram District.
5.The District Educational Officer,
O/o.The District Educational Office,
Paramakudi,
Ramanathapuram District.
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W.P(MD).No.1376 of 2019
S.M.SUBRAMANIAM,J.
Ns
W.P(MD).No.1376 of 2019
and
W.MP(MD)Nos.1188 of 2019 and 9093 of 2021
21.03.2022
https://www.mhc.tn.gov.in/judis
