IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/11/2005
CORAM
THE HON'BLE MR.JUSTICE P.SATHASIVAM
and
THE HON'BLE MR.JUSTICE S.K. KRISHNAN
W.P. No.41837 of 2002
and WPMP.No.61836 of 2002
M. Ganesan .. Petitioner
-Vs-
1. The State of Tamil Nadu
rep. by its Secretary to Government
Commercial Taxes and Religious
Endowments Department
Secretariat
Chennai 600 009.
2. The Inspector General of Registration
Santhome High Road
Chennai 600 028.
3. The Registrar
Tamil Nadu Administrative Tribunal
Chennai 600 104. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Certiorarified mandamus as stated
therein.
For petitioner : Mr. A. Amalraj
For respondents : Mr. E. Sampathkumar
Government Advocate
:ORDER
(ORDER of the Court was made by P.SATHASIVAM,J.)
Aggrieved by the order of the Tamil Nadu Administrative
Tribunal, Chennai dated 26.11.2001 made in O.A.No.5906 of 1998, the petitioner
has filed the above writ petition to quash the same as null, void, illegal and
invalid and consequently direct the respondents 1 and 2 to disburse arrears of
increment stopped pursuant to punishment order dated 15.04.1998 / 11.05.1998,
apart from regulating the pay scale including all the increments together with
paper promotion as SubRegistrar Grade-I on par with his juniors with all
attendant benefits giving weightage to his pensionary benefits, etc.,
2. According to the petitioner, he entered Government service
as Section Writer on 07.09.1965 and after serving in the Registration
Department in various capacities, he retired from service, after attaining the
age of superannuation on 30.11.2001. The second respondent in his proceedings
dated 21.10.1997, issued a charge memo under Rule 17(b) of the Tamil Nadu
Civil Services (Discipline and Appeal) Rules, 19 55 (in short “the Rules”),
alleging certain irregularities occurred in remittance of collection amount
due to lack of supervision in the remittance duty. On receipt of the charge
memo, he made a demand from the Sub-Registrar, Pallipalayam, requesting him to
furnish certain documents, so as to enable him to submit an effective
explanation. However, there was no response from him, and with the available
materials, he submitted his explanation / objection on 26.11.1997. The second
respondent in his proceedings dated 15.04.1998 / 11.05.1998, without
conducting any enquiry and giving opportunity to defend, as contemplated under
Rule 17(b) of the Rules, has straight-away issued an order of punishment
stopping increment for three years without cumulative effect. Questioning the
same, he filed O.A.No.5906 of 1998 before the Tamil Nadu Administrative
Tribunal, Chennai. By the impugned order dated 26.11.2001, the Tribunal,
after finding that there is no procedural irregularity or illegality,
dismissed his application; hence, the present writ petition.
3. Heard Mr. A. Amalraj, learned counsel for the petitioner
and Mr. E. Sampathkumar, learned Government Advocate for respondents 1 and 2
.
4. The learned counsel appearing for the petitioner, after
taking us through the charge memo, his explanation, final order dated 15.04.1
998 / 11.05.1998 and the impugned order dated 26.11.2001, would submit that
having mentioned that action has to be taken under Rule 17( b) of the Rules,
the second respondent committed an error in passing final order under Rule
17(a). He also contended that even under Rule 17(a), in the light of the fact
that the petitioner had demanded certain documents, which were not provided,
and submitted his explanation disputing the allegations, the second respondent
ought to have conducted an enquiry before passing the order. The above
material aspects have not been considered by the Tribunal and hence committed
an error in dismissing his original application.
5. On the other hand, Mr. E. Sampathkumar, learned
Government Advocate, would submit that action was initiated under Rule 17(a)
and before passing the order of punishment, petitioner was given adequate
opportunity and in fact he submitted his explanation and the same was duly
considered, and hence there are neither procedural lapses nor violation of
principles of natural justice.
6. We have carefully considered the materials placed and the
rival contentions.
7. Coming to the first contention of the learned counsel for
the petitioner, in the charge memo though the authority, viz., Inspector
General of Registration referred to Rule 17(b), in the “Subject”, in the
concluding paragraph, a reference was made only to Rule 17(a). The relevant
portion reads as under.
” vdnt. mth; kPJ jkpH;ehL Foikg;gzpahsh; gzp (xG’;F kw;Wk; nky; KiwaPL)
tpjpfspd; tpjp 17(v)d; fPH; eltof;if vLf;f vz;zKs;sJ. ”
Further, the final order dated 15.04.1998 refers only Rule 17(a). Therefore,
we are satisfied that the action was taken against the petitioner only under
Rule 17(a) and not under Rule 17(b).
8. Coming to the other contention that even for minor penalty
under Rule 17(a), according to the learned counsel for the petitioner,
adequate opportunity has to be given, for which, he relied on a decision of
the Supreme Court in the case of O.K. Bhardwaj vs. Union of India reported
in 2001 (9) SCC 180. In the said case, wherein the High Court has arrived at
a proposition that in the case of minor penalties, it is not necessary to give
opportunity to the employee to give explanation and it is also not necessary
to hear him before awarding the penalty. When the matter was taken up to the
Supreme Court, the Hon’ble Supreme Court has not agreed with the said
proposition and observed that,
“…. Even in the case of minor penalty, an opportunity has to be given to
the delinquent employee to have his say or to file his explanation with
respect to the charges against him. ”
He also relied on the case of University of Bihar vs. Kamal Deo Thakur
reported in 2005 (9) SCC 278. In that case, the first respondent before the
Supreme Court did not join duty at the transferred place despite publication
of notice in a local newspaper and on the failure to join there, the
University (the employer), terminated him from service without enquiry. The
Supreme Court held that the University ought to have conducted an enquiry and
given an opportunity to the first respondent to defend his case. Inasmuch as
the said case relates to termination of service, the above judgment is not
helpful to the petitioner’s case. However, in the earlier judgment, viz.,
2001 (9) SCC 180 (cited supra), Supreme Court held that even in the case of
minor penalty, an opportunity should be given to the delinquent employee to
have his say or submit him explanation with respect to the charges leveled
against him. Rule 17(a) also provides that where it is proposed to impose on
a member of a service of a person holding a civil post under the State any of
the penalties specified in items (i), ( ii), (iii), (v) and (ix) in Rule 8 or
in Rule 9, he shall be given a reasonable opportunity of making any
representation that he may desire to make and such representation, if any,
shall be taken into consideration before the order imposing the penalty is
passed.
9. In the present case, it is not in dispute that pursuant to
the charge memo dated 21.10.1997, the petitioner submitted his explanation on
26.11.1997 and the same was considered in detail in the final order dated
15.04.1998. In such a circumstance, the procedure followed and the order
passed by the second respondent satisfied the mandate provided under Rule
17(a) and also the dictum laid down by the Supreme Court in 2001 (9) SCC 180.
10. It is useful to refer the recent decision of the Supreme
court in the case of Ganesh Santa Ram Sirur vs. State Bank of India reported
in 2005 (1) SCC 13, wherein their Lordships referred to the principles laid
down in the case of Union of India vs. Jesus Sales Corporation reported in
1996 (4) SCC 69, which reads as under.
“…. When principles of natural justice require an opportunity to be heard
before an adverse order is passed on any appeal or application, it does not in
all circumstances mean a personal hearing. The requirement is complied with
by affording an opportunity to the person concerned to present his case before
such quasi judicial authority, who is expected to apply his judicial mind to
the issues involved.”
As rightly pointed out by the learned Government Advocate, it is not a case of
no notice issued and no opportunity given to the petitioner. Though the
Tribunal has not discussed all the above details and the order is very brief,
in the light of the above reasons we do not find any valid ground for
interference. Consequently, the writ petition fails and the same is
dismissed. No costs. Consequently, connected WPMP., is also dismissed.
Index:Yes
Internet:Yes
kh
To
1. The Secretary to Government
State of Tamil Nadu
Commercial Taxes and Religious
Endowments Department
Secretariat
Chennai 600 009.
2. The Inspector General of Registration
Santhome High Road
Chennai 600 028.
3. The Registrar
Tamil Nadu Administrative Tribunal
Chennai 600 104.