Madras High Court
The Director Of Town Panchayats vs Kousalya Sankaralingam on 9 March, 2023
WA No. 475 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2023
CORAM :
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal No.475 of 2023
and
CMP.No.4508 of 2023
---
The Director of Town Panchayats
Kuralagam, Chennai - 600 108.
Presently at
7th and 8th Floor
Urban Administrative Office Campus,
No.75, Santhome High Road
MRC, Nagar, R.A.Puram
Chennai - 600 028 .. Appellant
Versus
Kousalya Sankaralingam .. Respondent
Writ Appeal filed under Clause 15 of Letters Patent praying to set aside
the order dated 29.06.2021 made in WP No. 19771 of 2008.
For Appellant : Mr. Silambanan
Additional Advocate General
assisted by Mr. S. Yashwanth,
Additional Government Pleader
For Respondent : Mr. V. Vijayashankar
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WA No. 475 of 2023
JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J.)
The appellant has filed this writ appeal challenging the order dated
29.06.2021 passed by the learned Judge in WP No.19771 of 2008 filed by the
respondent herein.
2. The necessary facts leading to the filing of this writ appeal are as
follows:
2.1 During the course of employment of the respondent as Executive
Officer in Nelliyalam Town Panchayat, Pandalur Taluk, Nilgiris District, the
Director of Vigilance and Anti Corruption received a complaint against her
that without prior permission and intimation from the employer, she had
purchased land measuring 0.21 cents in S.F.2297/1 at Pandalur for a sale
consideration a sum of Rs.1,05,000/- and the same was registered in the joint
names of respondent and her sister Janaki, thereby she violated Rule 7 (1) (a)
of the Tamil Nadu Government Servants Conduct Rules, 1973. It is also
alleged that pursuant to the sale deed, the sister of the respondent namely
Janaki had applied for planning permission for construction of house and the
same was granted by the respondent, in her capacity as Executive Officer of
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WA No. 475 of 2023
Nelliyalam Town Panchayat vide Rc.No.BA.8/2000, dated 23.11.2000. Based
on the complaint, a preliminary enquiry was conducted on 11.09.2001 and a
report dated 26.03.2002 was submitted by the Vigilance and Anti Corruption,
Chennai recommending to initiate departmental proceeding against the
respondent. On the basis of such report, the Government issued G.O.(2D)
No.66, Municipal Administration and Water Supply (TP1(2) Department,
dated 20.08.2002, with direction to initiate departmental disciplinary
proceedings against the respondent. Accordingly, the appellant issued the
charge memo dated 26.04.2003 to the respondent. On 27.06.2003, the
respondent submitted her explanation stating that her mother, who had
sufficient source of income, purchased the property in her name without her
knowledge or consent. Therefore, it was explained that there was no occasion
for her to communicate the purchase of the immovable property to the
department. Not satisfied with the explanation offered, an Enquiry Officer
was appointed, who, after conducting enquiry, held that the charges are
proved. Based on report of the enquiry officer, the appellant, in his
proceedings in RC.No.6017/2003/A4, dated 18.01.2008, had imposed the
punishment of censure. Aggrieved by the same, the respondent has filed
WP No. 19771 of 2008 praying to quash the Order of punishment dated
18.01.2008.
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WA No. 475 of 2023
2.2. The learned Judge, by the order dated 29.06.2021, allowed the
writ petition mainly on the ground that the registration of sale deed does not
require the presence of the person in whose name it was registered. The
purchase was made by mother of the respondent by paying the entire sale
consideration to the vendor and the vendor had executed the sale deed. In that
view of the matter, it was an unilateral deed executed by the vendor. The
money was paid by the mother of the respondent without her consent and
knowledge. Further, totally 21 cents were purchased out of which, only two
cents with demarcation was purchased in the name of the respondent. During
the enquiry it was clearly established that the respondent had no knowledge
about the transaction, she had not given any money, she was not present at the
Registrar's office at any point of time in respect of the said transaction. In the
absence of any material in this regard, framing of charges based on sale deed
alone is vague and bereft of specific details and unsustainable. Therefore, it
was held that entire disciplinary proceedings stands vitiated for non
application of mind, lack of evidence and for want of jurisdiction.
Accordingly, the learned Judge, while setting aside the impugned order of
punishment, directed the appellant to confer all attendant and monetary
benefits to the respondent from the date on which, her immediate junior was
promoted. As against the said order, the present writ appeal is filed.
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WA No. 475 of 2023
3.1. Mr. Silambanan, learned Additional Advocate General appearing
for the appellant would contend that the respondent had purchased the
property by way of a registered sale deed and it was proved during the enquiry.
The respondent cannot therefore, feign ignorance of the sale transaction by
which two cents of land was purchased in her name. It is well settled by the
service Rules that a Government Servant is bound to disclose the purchase of
immovable property in her name or in the name of his or her spouse and to get
prior permission for the same. As long as the respondent failed to get prior
permission, she is liable to be punished. In such circumstances, the learned
Judge ought not to have interfered with the order of punishment imposed by
the disciplinary authority. Furthermore, the respondent challenged only the
order of punishment however, the learned Judge, while setting aside the said
order, issued direction to confer her all attendant and monetary benefits from
the date on which her immediate junior was promoted. According to the
learned Additional Advocate General, the State level seniority list was drawn
for promotion to the post of Selection Grade Executive Officer for the year
2003-2004, in which the respondent was placed in Serial No. 252. However,
in the year 2003-2004, she was given promotion to the said post and
subsequently, she was promoted to the post of Director of Municipal
Administration with effect from 06.10.2004. Thereafter, on 31.05.2009, the
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WA No. 475 of 2023
respondent retired from service on attaining the age of superannuation. While
so, the direction issued by the learned Judge to confer her all monetary
benefits on par with her immediate junior will not arise.
3.2. The learned Additional Advocate General further contended that
the learned Judge erred in observing that the appellant has no power to impose
the punishment as disciplinary authority and such power is vested with the
Commissioner of Municipal Administration. However, as per G.O. Ms. No.
118, Municipal Administration and Water Supply Department dated
21.08.2007, all the Executive Officers of Grade - III Municipalities are
reverted back to the Town Panchayats and the Director of Town Panchayats
continued to exercise his power as disciplinary authority in respect of the
Executive Officers of Town Panchayats. In view of G.O. Ms. No. 118, the
appellant is the competent authority to impose such punishment on the
respondent. The learned Judge, without considering the above aspects in
proper perspective, allowed the writ petition filed by the respondent, thereby
set aside the order of the disciplinary authority. Stating so, the learned counsel
sought to allow this appeal by quashing the order impugned herein.
4. Mr. V. Vijayashankar, learned counsel appearing for the
respondent would submit that the respondent was imposed with the penalty of
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WA No. 475 of 2023
"Censure" by the disciplinary authority without any material evidence.
Therefore, taking note of the fact that the respondent was grossly
discriminated in the matter of imposition of punishment, the learned Judge has
rightly allowed the writ petition filed by her, by setting aside the order of
punishment, which does not require any interference at the hands of this court.
5. We have heard the learned Additional Advocate General
appearing for the appellant as well as the learned Counsel for the respondent
and also perused the materials placed before us.
6. It is an admitted fact that while the respondent was working as an
Executive Officer in Nelliyalam Town Panchayat, a charge memo dated
26.04.2003 was issued to her for having purchased 2 cents of land in her name
without getting prior permission from the employer. After receipt of
explanation of the respondent dated 27.06.2003, an enquiry officer was
appointed. The enquiry officer submitted his report holding that all the
charges are proved against the respondent. Notwithstanding such report, the
disciplinary authority decided to drop all further action in the disciplinary
proceedings initiated against the respondent. At the same time, the
disciplinary authority imposed the punishment of "Censure" in his proceedings
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WA No. 475 of 2023
dated 18.01.2008. Aggrieved by the same, the respondent has filed the Writ
Petition.
7. The learned Judge interfered with the order of punishment
imposed by the appellant mainly on the ground that when once the disciplinary
authority decided to drop all further action against the respondent, the
punishment of censure imposed against her is legally not sustainable. The
learned Judge also reasoned that for imposing such a punishment of censure,
the disciplinary authority has not assigned any reason, but passed a cryptic
order, which cannot be sustained. Above all, it was noticed that Censure is not
one of the punishments contemplated under Rule 8 of the Tamil Nadu Civil
Services (Discipline and Appeal) Rules and therefore, the learned Judge
interfered with the order of punishment. We are also in entire agreement with
the conclusion arrived at by the learned Judge that when the punishment
imposed is not contemplated under the Statute, the Disciplinary authority is
not justified in imposing such a punishment against the respondent. That apart
it is settled law that the punishment not prescribed under the statutory Rules
cannot be imposed. Therefore, we see no reason to interfere with the order
passed by the learned Judge in so far as it relates to setting aside the order
imposing the punishment of censure on the respondent.
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WA No. 475 of 2023
8. Another notable point to be looked in to in the order impugned
herein is that, while setting aside the order of punishment of censure imposed
against the respondent, the learned Judge went one step further and directed
the appellant to confer all the attendant and monetary benefits to her from the
date on which her immediate junior was promoted to the post. According to
the learned Additional Advocate General, the respondent has filed the writ
petition only for the relief of Writ of Certiorari to quash the order dated
18.01.2008 of the disciplinary authority in imposing the punishment of censure
and she did not seek for consequential monetary benefits. While so, the
direction issued by the learned Judge to confer all consequential attendant and
monetary benefits to the respondent is beyond the scope of the writ petition.
We find force in such submission of the learned Additional Advocate General.
The respondent herself has filed the writ petition only to quash the order dated
18.01.2008. As such, after quashing the order dated 18.01.2008, the learned
Judge ought not to have issued a direction to the appellant to confer all
attendant and monetary benefits to the respondent from the date on which, her
immediate junior was promoted. Therefore, such a direction issued by the
learned Judge in para No.19 of the order is liable to be interfered with.
Accordingly, we set aside the direction issued by the learned Judge in para
No.19 of the order dated 29.06.2021, to the appellant to "confer all attendant
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WA No. 475 of 2023
and monetary benefits to the respondent from the date on which, her
immediate junior was promoted to the post". However, liberty is given to the
respondent to approach the appellate authority for any other claim.
9. In the result, the writ appeal stands disposed of in the above
terms. No costs. Consequently, connected miscellaneous petition is closed.
[R.M.D., J] [M.S.Q., J]
09.03.2023
Index : Yes / No
Internet : Yes / No
av/rsh
https://www.mhc.tn.gov.in/judis
WA No. 475 of 2023
R. MAHADEVAN, J
and
MOHAMMED SHAFFIQ, J
av/rsh
WA No.475 of 2023
09.03.2023
https://www.mhc.tn.gov.in/judis
