Madras High Court
The Government Of Tamil Nadu vs V.Kumaresan on 16 November, 2022
W.A(MD)No.1448 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.A(MD)No.1448 of 2021
and
C.M.P(MD)Nos.5943 & 6943 of 2021
1.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Department of Hindu Religious and
Charitable Endowments,
No.119, Uthamar Gandhi Salai,
Nungambakkam,
Chennai – 34.
2.The Commissioner,
The Commissioner Office,,
Department of Hindu Religious and
Charitable Endowments,
Chennai – 34.
3.The Joint Commissioner,
Joint Commissioner Office,
HR & CE Department,
Near Hotel Temple Tower,
Thanjavur District. ... Appellants/Respondents
vs.
V.Kumaresan ... Respondent/Writ Petitioner
1/10
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W.A(MD)No.1448 of 2021
PRAYER : Writ Appeal filed under Clause 15 of Letters Patent to set aside
the order, dated 10.12.2019 passed in W.P(MD)No.12588 of 2017, on the
file of this Court.
For Appellants : Mr.P.Subbaraj
Special Government Pleader
For Respondent : Mr.J.Gunaseelan Muthiah
JUDGMENT
[Judgment of the Court was made by R.MAHADEVAN, J.)
This intra Court appeal arises from the order, dated 10.12.2019
passed by the learned Judge in W.P(MD)No.12588 of 2017.
2.Originally, the respondent herein, while working as Assistant
Commissioner in the HR&CE Department, was issued with charge-memo,
dated 13.09.2013, which ended in punishment of stoppage of increment for
two years without cumulative effect, by G.O.No.72 TC&RE (2-2)
Department, dated 24.04.2017. Challenging the same, the respondent filed
a writ petition viz., W.P(MD)No.12588 of 2017. This Court, by order, dated
10.12.2019, which is impugned herein, allowed the said Writ Petition by
setting aside the order of punishment passed by the first appellant.
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W.A(MD)No.1448 of 2021
Aggrieved by the same, the appellants / officials of the HR&CE department,
are before this court with this appeal.
3.The learned Special Government Pleader appearing for the
appellants submitted that though the charges were framed under Rule 17(b)
of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the
respondent was imposed with minor penalty by the disciplinary authority.
Therefore, the order of the learned Judge in completely exonerating the
delinquent from the proven charges, merely on the ground that major
penalty procedure was followed, is liable to be set aside.
4.Per contra, the learned counsel appearing for the respondent
submitted that the learned Judge, after analysing the facts and
circumstances of the case in the light of the legal principles, has rightly set
aside the order of punishment imposed on the respondent by the order
impugned in the writ appeal and hence, the same does not call for any
interference by this Court.
5.Heard both sides and perused the records.
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W.A(MD)No.1448 of 2021
6.Admittedly, the respondent was issued with charge memo, dated
13.09.2013, under rule 17(b) of the Tamil Nadu Civil Services (Discipline
and Appeal) Rules, to the effect that in the first count, he has not attended
the review meeting held on 20.07.2013 conducted by the second appellant;
the second count charge is that he has not attended the review meeting
held on 08.08.2013 conducted by the second appellant; and the third count
charge is that by considering the said two charges, he has acted against
integrity and devotion to duty, dereliction of duties and responsibilities in
violation of Rule 20 of the Tamil Nadu Government Servant Conduct Rules.
The said charge memo ended in punishment of stoppage of increment for
two years without cumulative effect, which was questioned by the
respondent by filing W.P(MD)No.12588 of 2017.
7.The learned Judge allowed the writ petition by setting aside the
order of punishment imposed on the respondent, by the impugned order
herein, the relevant passage of which is profitably extracted below:
“5.The charges levelled against the petitioner revolve
around the petitioner's failure to participate in the review
meetings. Apparently, the charges itself may not warrant a
major penalty of dismissal for removal from service. As
pointed out by the petitioner, Guideline No.3 of the
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W.A(MD)No.1448 of 2021
respondent / Department circular, dated 02.02.2017 states
that failure to attend the review meetings should not be
proceeded against under 17(b) of said Rule. While that being
so, the conduct of the respondents in treating the charges to
be serious in nature and proceedings under Rule 17(b) itself
may not be proper.
6.This Court in the case of S.Kannan Vs., State of
Tamil Nadu, rep., by its Secretary to the Government,
Home Transport-II Department, The Transport
Commissioner and the Joint Transport Commissioner,
Chennai Zone, Transport Department reported in (2009) 8
MLJ 217 had held that unless a major punishment is really
warranted, the framing of charges under 17(b) of the Rules is
not necessary and should be avoided.
7.The relevant portion of the order reads as follows:
.....
14.The only point that arises for
determination in this case is, whether the charges
framed against the petitioner attract Rule 17(a) or
Rule 17(b) of the Rules ?
15.For deciding the charges to be framed
under Rule 17(b), the Government, vide Circular
No. 14353, P&AR; (Per.N)/93-1, dated 11.03.1993,
has framed certain guidelines, which read as
under:
Without prejudice to the generality of
situations involving indiscipline, moral turpitude,
corruption etc., charges under Rule 17(b) have to
be framed in the following types of cases for
imposing any one of the major penalties:
(1) Cases in which there is reasonable
ground to believe that a penal offence has been
committed by a Government servant but the
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W.A(MD)No.1448 of 2021
evidence forthcoming is not sufficient for
prosecution in a Court of Law, e.g.
(a) possession of assets disproportionate
to the known sources of income;
(b) obtaining or attempting to obtain
illegal gratification ;
(c) misappropriation of Government
property, money or shares;
(d) obtaining or attempting to obtain
any valuable thing or pecuniary advantage without
consideration or for a consideration which is not
adequate etc;
(2) Falsification of Government records.
(3) Irregularity or negligence in the
discharge of official duties with a dishonest motive.
(emphasis supplied)
(4) Misuse of official position for personal
gain.
(5) Disclosure of secret or confidential
information even though it does not fall strictly
within the scope of the Official Secrets Act.
(6) Misappropriation of Government
funds, false claims of Travelling Allowance,
reimbursement of false medical bills etc. Unless a
major punishment is really warranted namely,
dismissal from service, removal from service,
compulsory retirement or reduction to a lower rank
in the seniority list or to a lower post or time scale,
framing of charges under Rule 17(b) is not
necessary and should be avoided.
(emphasis supplied)
11. On a perusal of the above guidelines,
what comes to be known is that none of the
charges framed against the petitioner comes under
the above category of cases. Though the charges
are framed against the petitioner under Rule 17(b)
as if there is irregularity or negligence in the
discharge of official duties, as adumbrated in
clause 3 of the guidelines referred to supra, the
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W.A(MD)No.1448 of 2021
said negligence, alleged by the respondents, does
not contain the dishonest motive, which is a crucial
factor for deciding the category of the charge i.e.,
under 17 (a) or under 17 (b).
12. The very object of framing of the
guidelines is that unless a major punishment is
really warranted, namely, dismissal from service,
removal from service, compulsory retirement or
reduction to a lower rank in the seniority list or to
a lower post or time scale, framing of charges
under Rule 17(b) is not necessary and should be
avoided.'
8.The aforesaid decision was followed by another
learned Single Judge of this Court in W.P(MD).No.12725 of
2011, dated 22.03.2013 in the case of M.Sampoornam Vs.,
State of Tamil Nadu, rep., by its Secretary to
Government, Revenue Department, Secretariat,
Chennai-9 and another and held thus:
'12.In the light of catena of decisions
referred to above, having gone through the facts and
circumstances and material papers available on
record, I am of the view that the respondents could
have framed the charges against the petitioner only
under rule 17(a) and not under Rule 17(b) of the
Tamil Nadu Civil Services (Discipline & Appeal) Rules,
it being a minor delinquency, as per the guidelines
issued by the Government and the proceeding would
not be a bar in promoting the petitioner, subject to
the result of the departmental proceeding.'
9.The aforesaid orders are self explanatory in nature.
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W.A(MD)No.1448 of 2021
10.In view of the same, the very conduct of the
respondents in proceedings against the petitioner under 17(b)
of said Rule for the minor charges and also in view of their own
Circular No.4342/2017/L1, dated 02.02.2017, there was no
justification on their part and as such, the entire disciplinary
proceedings itself would stand vitiated.
11.For all foregoing reasons, the impugned order in
G.O.(Pa) No.72 (Tourism, Culture and Religious Endowments
(Aa.Ni 2-2) Department), dated 24.04.2017 on the file of the
first respondent stands quashed. Accordingly, this Writ Petition
is allowed. No costs. Consequently, connected Miscellaneous
Petitions are closed.”
8.This Court is of the opinion that the learned Judge, having
regard to the nature of the charges framed against the respondent, which
are minor delinquency, and taking into consideration the guidelines issued
by the Government for framing charges against the delinquent as well as
the earlier orders of this court, wherein, it was categorically held that
"unless a major punishment is warranted, the framing of charges under
17(b) of the Rules is not necessary and should be avoided", has rightly set
aside the order of punishment passed by the first appellant against the
respondent herein, as not maintainable. Therefore, the appellants have not
made out any ground much less valid ground to interfere with the order of
the learned Judge.
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W.A(MD)No.1448 of 2021
9.Accordingly, the intra court appeal is dismissed. No costs.
Consequently, connected Miscellaneous Petitions are closed.
[R.M.D.,J.] & [J.S.N.P.,J.]
16.11.2022
Index : Yes / No
Internet : Yes
ps
To
1.The Principal Secretary,
Department of Hindu Religious and
Charitable Endowments,
No.119, Uthamar Gandhi Salai,
Nungambakkam,
Chennai – 34.
2.The Commissioner,
The Commissioner Office,,
Department of Hindu Religious and
Charitable Endowments,
Chennai – 34.
3.The Joint Commissioner,
Joint Commissioner Office,
HR & CE Department,
Near Hotel Temple Tower,
Thanjavur District.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.1448 of 2021
R.MAHADEVAN,J.
and
J.SATHYA NARAYANA PRASAD,J.
ps
ORDER MADE IN
W.A(MD)No.1448 of 2021
16.11.2022
https://www.mhc.tn.gov.in/judis
