Madras High Court
S.Sivaraj vs The Government Of Tamil Nadu on 23 January, 2023
W.P.No.33318 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.01.2023
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.No.333318 of 2016
S.Sivaraj ... Petitioner
Vs.
1. The Government of Tamil Nadu
rep by the Principal Secretary to Government,
Home (Prisons-2) Department,
Fort St.George, Chennai-600 009.
2. The Deputy Inspector General of Prisons, Trichy
3. The Superintendent, Central Prison, Cuddalore
... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus to call for the records
relating to the impugned order of the first respondent in G.O.(2-D) No.108
Home (Prisons-2) Department dated 23.2.2016 confirming the orders passed by
the second respondent in No.2613/Mu.U/2010 dated 27.10.2010 and the orders
passed by the third respondent in No.15187/Po-1/2009 dated 2.8.2010 and
quash the same orders and direct the respondents to reinstate the petitioner in
service with attendant consequential benefits.
For Petitioner : M/s Arasu Sanga Tamil
and R.L.Vetrivel
For Respondents : Mr.K.H.Ravikumar
Government Advocate
https://www.mhc.tn.gov.in/judis
1/8
W.P.No.33318 of 2016
ORDER
The petitioner herein, while serving as Male Nursing Assistant in Central
Prison at Cuddalore, was levelled with certain charges, through Charge Memo
dated 18.11.2009, alleging that he had concealed contra band (ganja) on his self
and had transferred the same to the prisoner and apart from that another
allegation that there was Rs.500/- in his pocket, which was seized by the
investigation team.
2. On the basis of the levelled charges, the petitioner was subjected to
enquiry and in the enquiry report dated 01.04.2010, the charges against him
were held to be proved. The petitioner had submitted his further explanation on
28.04.2010 to the enquiry report. However, the disciplinary authority, through
order dated 02.08.2010, had imposed punishment of dismissal from service. As
against the order of dismissal, the petitioner preferred an appeal on 01.09.2010
before the second respondent herein. In the appeal, the petitioner had raised
several grounds, questioning the enquiry report as well as the proceedings. The
petitioner had stated that due opportunity was not extended to him during the
course of enquiry. This apart, the petitioner had stated that the key witness to
the delinquent was not examined by the respondents and therefore, the enquiry
https://www.mhc.tn.gov.in/judis
W.P.No.33318 of 2016
itself was vitiated. The second respondent, herein, however, rejected the
petitioner's appeal on 27.10.2010. Further, a revision preferred by the petitioner
before the first respondent herein was also rejected on 23.02.2016. Challenging
the orders of punishment, appeal and the revision, the present writ petition has
been filed.
3. As stated above after the disciplinary authority had imposed the
punishment of dismissal from service on 02.08.2010, the petitioner preferred an
appeal on 01.09.2010. In the appeal, several grounds were raised against the
enquiry proceedings as well as the order of the disciplinary authority. However,
the second respondent herein, while passing the order on 27.10.2010 had
merely observed that the petitioner had admitted the charges levelled against
him during the course of enquiry and that since he had stated that there are no
witnesses on his side during the course of enquiry, his present request for denial
of witnesses during the course of enquiry cannot be accepted. Apart from such
observation, there is no independent finding by the appellate authority with
regard to the grounds raised by the petitioner touching upon the conduct of the
enquiry as well as the order of the disciplinary authority.
4. Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal)
https://www.mhc.tn.gov.in/judis
W.P.No.33318 of 2016
Rules, 1955 provides for the procedure to be adopted by the appellate
authority to deal with an appeal petition. As per the said Rule, “ In the case of
an appeal against an order imposing any penalty specified in Rule 8 or 9, the
appellate authority shall consider whether the facts on which the order was
based has been established; whether the facts established afford sufficient
ground for taking action and whether the penalty is excessive, adequate or
inadequate.” Thus, the duty cast upon the appellate authority while dealing
with the appeal is that he should come to an subjective satisfaction that the
punishment was based on the established facts before the disciplinary authority.
In other words, the appellate authority ought to have dealt with the findings of
the enquiry officer in detail as well as answer the grounds raised by the
petitioner and so also the order of punishment by the disciplinary authority
before passing final orders in the appeal.
5. In the instant case, the second respondent herein, had not complied
with any of these requirements of Rule 23 of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules, 1955 while dismissing the petitioner's appeal. As
such, the order itself could be said to be a non-speaking order, which cannot be
sustained in law.
https://www.mhc.tn.gov.in/judis
W.P.No.33318 of 2016
6. In view of the violation of the Rule it would be appropriate that the
matter may be remitted back to the second respondent herein for re-
consideration. In this background, the subsequent order passed by the first
respondent in the revision is liable to be set aside.
7. Learned counsel for the petitioner submits that after the order was
passed by the second respondent in the appeal, the criminal court had dealt with
the set of charges identical to those that were levelled in the disciplinary
proceedings and has acquitted the petitioner through a judgment dated
19.12.2012 in C.C.No.71 of 2011. Since the judgment of acquittal was not
available when the appellate authority had dealt with the matter, the petitioner
could be granted liberty to file additional grounds touching upon the judgment
of acquittal of the criminal court.
8. In the light of the above proceedings, the impugned order passed by
the second respondent dated 27.10.2010 as well as the order of the first
respondent in G.O.(2-D) No.108 Home (Prisons-2) Department dated
23.2.2016 are set aside and the matter is remitted back to the second
respondent herein for reconsideration. The petitioner is at liberty to raise
additional grounds limited to those that find place in the judgment of acquittal
https://www.mhc.tn.gov.in/judis
W.P.No.33318 of 2016
in C.C.No.71 of 2011 dated 19.12.2012 within a period of fifteen days from the
date of receipt of a copy of this order and thereafter, the second respondent
herein shall consider the petitioner's original appeal dated 01.09.2010 together
with the additional grounds raised, if any, and pass a speaking order, by
following the procedure contemplated under Rule 23 of the Tamil Nadu Civil
Services (Discipline and Appeal), 1955, within a period of three months.
9. With the above direction, the writ petition is disposed of. No costs.
23.01.2023
Speaking/Non-speaking order
Neutral Citation: Yes/No
Index: Yes/No
Internet: Yes/No
sr
https://www.mhc.tn.gov.in/judis
W.P.No.33318 of 2016
To
1. The Government of Tamil Nadu
rep by the Principal Secretary to Government,
Home (Prisons-2) Department,
Fort St.George, Chennai-600 009.
2. The Deputy Inspector General of Prisons, Trichy
3. The Superintendent, Central Prison, Cuddalore
https://www.mhc.tn.gov.in/judis
W.P.No.33318 of 2016
M.S.RAMESH,J.
Sr
W.P.No.33318 of 2016
23.01.2023
https://www.mhc.tn.gov.in/judis
