Madras High Court
The Secretary To Government vs A.Babu on 5 June, 2023
W.A.No.2398 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2023
CORAM :
THE HON'BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON'BLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A.No.2398 of 2022
and
C.M.P.No.18422 of 2022
1.The Secretary to Government,
Environment & Forest Department,
Fort St. George,
Chennai - 600 009.
2.The Principal Chief Conservator of Forests &
Head of Force-I,
Panagal Buildings,
1-Zenith Road, Saidapet,
Chennai - 15.
3.The District Forest Officer,
Nellikuppam Road, Cuddalore.
4.The Secretary,
Tamil Nadu Public Service Commission,
Chennai - 600 003. ... Appellants
Vs.
A.Babu ... Respondent
Writ Appeal filed under Clause 15 of the Letters Patent, against the order
passed by the learned Judge dated 13.04.2022 in W.P.No.9062 of 2021.
For Appellant : Mr.Haja Nazirudeen
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Additional Advocate General
assisted by Mr.T.Arunkumar
Additional Government Pleader
For respondents : Mr.Vijay Narayan
Senior Advocate
for Mr.V.Chokkalingam
JUDGMENT
(Judgment of the Court was made by R. MAHADEVAN, J.)
This writ appeal has been filed by the appellants/State praying to set aside
the order passed by the learned Judge in W.P.No.9062 of 2021 on 13.04.2022.
2. The facts which are necessary for disposal of this appeal are as under:
2.1. The respondent herein / writ petitioner joined the service as
Agricultural Assistant in Cinchona Department on 04.09.1985. The said
Department was wound up with effect from 01.04.1990 by virtue of
G.O.Ms.No.221, Environment and Forest Department dated 03.04.1990, due to
which, the respondent was transferred and absorbed as Forester with effect from
01.04.1990. Admittedly, all the staff of Cinchona Department were absorbed in
the Forest Department by virtue of G.O.Ms.No.275, Environment and Forest (FR-
VIII) Department dated 06.11.1996, after passing of Tribunal’s order dated
13.03.1997 and the proceedings of the second appellant dated 22.05.1997.
According to the respondent, his seniority was denied for a long time from 1997.
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Upon filing W.P.No.15089 of 2009, by order dated 01.10.2013, the learned Judge
directed the State to fix the seniority of the respondent herein in the cadre of
Forest Ranger from the date of his initial appointment and also ordered to give
promotion as Forest Range Officer with all consequential benefits recognizing the
respondent’s seniority above his immediate junior as per the list of seniority of
Foresters fit for promotion as Rangers in the year 2009-10, qualified as on
15.08.2009. Since the said order was not complied with, the respondent filed
Contempt Application in Cont.A.No.2975 of 2014, which was closed based on the
statement made by the counsel for the second appellant. Thereafter, the
respondent herein filed Sub.A.135 of 2015 to reopen the contempt petition and
vide order dated 10.06.2015, the learned Judge directed the respondents therein
to promote the respondent herein as Assistant Conservator of Forests from the
date on which his immediate junior was promoted. When the said Sub Application
was listed for hearing on 02.07.2015, the second appellant submitted that an
enquiry is pending against the respondent herein for the charge framed under
Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules and on
that ground, the respondent was not given promotion.
2.2. The charge against the respondent is that in the five cases relating
to catching of cranes, he compounded the offence by imposing fine on the
offenders, collected and deposited the fine amounts in the treasury, without prior
permission from the District Forest Officer, Cuddalore. However, the Enquiry
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W.A.No.2398 of 2022
Officer / District Forest Officer, Kallakurichi, considering the oral and documentary
evidence, came to the conclusion that there is no evidence to prove the charge
against the respondent herein that he had voluntarily taken decision to collect the
fine amount by compounding the offences under the Wild Life (Protection) Act,
1972, by relying upon the statement of one P.Mani, Forest Range Officer dated
14.11.2014. But the Disciplinary Authority / second appellant disagreed with the
views of the Enquiry Officer and imposed a punishment of stoppage of increment
for one year with cumulative effect by order dated 19.08.2015. Challenging the
order passed by the second appellant, the respondent herein preferred an appeal
before the first appellant on 01.09.2015, besides filing a writ petition in
W.P.No.28541 of 2015 before the writ court. The first appellant has rejected the
appeal of the respondent herein vide G.O.Ms.(2D)No.6 dated 21.01.2020 relying
upon the opinion of the fourth appellant / TNPSC dated 23.12.2019.
2.3. Aggrieved by the order of the second appellant dated 19.08.2015,
opinion of the fourth appellant / TNPSC dated 23.12.2019 and the consequential
rejection of appeal by the first appellant dated 21.01.2020, the respondent filed
WP.No.9062 of 2021. Both these writ petitions and Sub.A.No.135 of 2015 in
Cont.P.No.2975 of 2014 were jointly heard and a common order dated 13.04.2022
was passed by the learned Judge, thereby setting aside the order passed by the
second appellant dated 19.08.2015, opinion of the fourth appellant dated
23.12.2019 and the order of the first appellant dated 21.01.2020 and
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W.A.No.2398 of 2022
consequently, directing the appellants 1 and 2 to comply with the order dated
01.10.2013 passe in W.P.No.15089 of 2009 and to give promotion to the
respondent herein as Assistant Conservator of Forests on par with his junior
B.Kalaivanan (Sl.No.58) and confer him with all consequential service and
monetary benefits, within a period of 12 weeks.
2.4. Challenging the order so passed by the learned Judge in
W.P.No.9062 of 2021, the present writ appeal has been filed by the State.
3.The learned Additional Advocate General appearing for the appellants /
State submitted that the learned Judge failed to note that the delinquent violated
Section 54 of the Wild Life (Protection) Act, 1972 which envisages that an officer
not below the rank of Assistant Director of Wild Life Preservation and in the case
of a State Government in the similar manner, empowers the Chief Wild Life
Warden or any officer of a rank not below the rank of a Deputy Conservator of
Forests to compound the offence. When the statute prescribed certain things to
be done in a particular fashion, it ought to be done in such fashion only.
However, the learned Judge misconstrued the procedures followed by the
disciplinary authority and sat over the findings of the appellate authority, which is
not permissible. Thus, according to the learned counsel, the writ Court should not
go into the facts of disciplinary cases and re-appreciate the evidence, which is
against the law. It is also submitted by the learned Additional Advocate General
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that fair opportunity of hearing has been granted to the delinquent and when
that being the case, it is not correct on his part now to say that he was not
granted fair opportunity and hence, the same cannot be accepted as it is only an
after-thought. It is further submitted that since as on the crucial date, ie.,
15.08.2016, the delinquent was under the currency of punishment, his name was
rightly deferred for promotion. However, the learned Judge has wrongly allowed
the claim of the respondent by applying the principles laid down in various
judgments of this court as well as the Hon'ble Supreme Court. Stating so, the
learned Additional Advocate General prayed this Court to allow this writ appeal by
setting aside the order of the learned Judge.
4.At the outset, Mr.Vijay Narayan, learned senior counsel appearing for the
respondent herein, submitted that the learned Judge has considered the matter
in proper perspective and passed the order impugned herein. In reply to the
points raised on the side of the appellants, the learned senior counsel submitted
that even after the merger of Cinchona Department with TANTEA, Cinchona staff
were denied their ‘fitment in equal cadre’ and ‘due seniority’ and ‘promotion’ in
the Forest Department as mandated under Rules 35(aa) and 35(b) of the Tamil
Nadu Subordinate Service Rules. The correct seniority of the respondent has
been rightly fixed as 50-A in the list of Foresters fit for promotion as Forest Range
Officer, only after the orders passed by the learned Judge in the Contempt
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Petition. It is further submitted that even though the Enquiry Report filed by the
Enquiry Officer (DFO, Kallakurichi) for the periods between 14.11.2014 and
08.01.2015 stating that the charges against the respondent herein, have not been
proved, the first appellant/appellate authority and the fourth appellant / TNPSC
have failed to advert to the fact that the second appellant had chosen to differ
with the findings of the Domestic Enquiry Officer that the respondent herein was
not found guilty of the charges made against him. With regard to Schedule IX &
7(1) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, it
is submitted by the learned senior counsel that the same will not apply to the
case of the respondent herein, since the said amendments came into force only
with effect from 20.07.2017, but the currency of punishment imposed on the
respondent ended on 30.06.2017 (i.e.) well before the amendment.
5.It is also submitted by the learned senior counsel appearing for the
respondent that the respondent has not violated any of the provisions of the Wild
Life (Protection) Act, 1972 and in fact, he got approval of DFO, Cuddalore over his
mobile phone to compound the offences as detailed in his representation dated
24.02.2014 submitted to the Principal Chief Conservator of Forests, and remitted
the fine amount collected into Treasury and there is no dispute over it. Hence,
the question of misusing the powers of District Forest Officer by the respondent,
does not arise. Continuing further, the learned senior counsel submitted that if
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the respondent has committed the alleged offence, the DFO, Cuddalore should
have framed charges immediately, but he has kept quiet for nearly two years i.e.,
till 28.10.2013, which would go to show that it is clearly an after-thought. Thus,
according to the learned senior counsel, the order of the learned Judge is
perfectly right and the same need not be interfered with by this court.
6.Heard the learned counsel on either side and perused the materials
available on record, carefully and meticulously.
7.The facts are not disputed. The appellants questioned the order of the
learned Judge mainly on the ground that the respondent herein has violated the
provisions of the Wild Life (Protection) Act, 1972. Though the Enquiry Officer was
of the opinion that the charge framed against the respondent was not proved, the
disciplinary authority imposed the punishment of stoppage of increment for one
year with cumulative effect and the same was also confirmed by the appellate
authority, based on the opinion of the TNPSC. However, the learned Judge erred
in setting aside these orders passed against the respondent, by the order
impugned in this appeal and directing the appellants to give promotion as
Assistant Conservator of Forests on par with his junior and confer him with all
consequential service and monetary benefits.
8.Upon careful reading of the order impugned herein, it is seen that the
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learned Judge has analysed the matter in detail and has found that it was the
stand of the respondent before the Enquiry Officer that since carrying cranes
numbering 9 alive to DFO’s office at Cuddalore, which is 40 Kms away from
Chidambaram, was felt life hazard to the birds, he obtained oral permission to
compound the offences, collected the fine and deposited the same in the treasury
and also made relevant entries in the records and forwarded the same to DFO on
the same day; even the Enquiry Officer / DFO, Kallakurichi, considering the oral
and documentary evidence, came to the conclusion that there is no evidence to
prove the charge against the respondent that he took decision voluntarily to
collect the fine amount by compounding the offences; but the Disciplinary
Authority / second appellant has disagreed with the views of the Enquiry Officer
on the ground that one P.Mani-Forest Range Officer has made entries in his diary
that on 15.11.2011, he accompanied DFO for field inspection relating to Chief
Minister Massive Tree Planting Programme. It is an admitted fact that in the
domestic enquiry, neither any witness was examined nor any evidence was
marked. Taking note of the same, the learned Judge has observed that the
documents in Forms ‘A’ and ‘C’ sent to DFO, Cuddalore for the periods between
15.11.2011 and 03.12.2011 clearly establish that the DFO has not disputed the
said collection of fine amount by compounding the offences by the respondent
herein and hence, the findings given by the Disciplinary Authority in the
disagreement notice based on the diary of P.Mani-Forester, are not acceptable.
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Further, the learned Judge has followed the settled legal position that if the
Disciplinary Authority deviates from the finding of the Enquiry Officer, he has to
assign reasons for taking dissenting view on the report of the Enquiry Officer and
held that the disciplinary authority in this case, has not assigned any reason for
differing with the view taken by the Enquiry Officer. That apart, considering the
fact that the charge memo was issued belatedly, ie., after conducting the audit,
the learned Judge has categorically stated that only in order to scuttle the
respondent’s promotion as Assistant Conservator of Forest and to overcome the
order passed in Sub.A.No.135 of 2015 in Cont.P.No.2975 of 2014, the impugned
order of punishment has been passed by the second appellant. It was further
observed by the learned Judge that the first appellant / appellate authority,
without independent application of mind, has dismissed the appeal filed by the
respondent herein by simply relying upon the views of the fourth appellant/
TNPSC dated 23.12.2019 and hence, the same is in violation of statutory
procedures contemplated under the Rules as well as Articles 14 and 16 of the
Constitution of India. Therefore, this court is of the opinion that the learned
Judge has gone in-depth into the issue and has rightly set aside the orders
passed by the appellant authorities, by the order impugned herein, which does
not call for any interference.
9.In such view of the matter, the writ appeal deserves to be dismissed as
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W.A.No.2398 of 2022
devoid of merits and is accordingly, dismissed. Consequently, the appellants are
directed to comply with the order of the learned Judge, within a period of twelve
weeks from the date of receipt of a copy of this judgment. No costs.
Consequently, connected miscellaneous petition is closed.
[R.M.D,J.] [M.S.Q, J.]
05.06.2023
rk
Speaking Order / Non-speaking order
Internet : Yes
Index : Yes / No
To
1.The Secretary to Government,
Environment & Forest Department,
Fort St. George,
Chennai - 600 009.
2.The Principal Chief Conservator of Forests &
Head of Force-I,
Panagal Buildings,
1-Zenith Road, Saidapet,
Chennai - 15.
3.The District Forest Officer,
Nellikuppam Road, Cuddalore.
4.The Secretary,
Tamil Nadu Public Service Commission,
Chennai - 600 003.
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
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W.A.No.2398 of 2022
rk
W.A.No.2398 of 2022 &
C.M.P.No.18422 of 2022
05.06.2023
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