IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.01.2010
CORAM:
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.No.33853 of 2006
N.Mathan ... Petitioner
versus
1. The Conservator of Forests,
Coimbatore Circle,
Coimbatore.
2. The District Forest Officer,
Gudalore Division,
Gudalore. ... Respondents
PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.8419 of 1998 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for records relating to the order of the first respondent in No.:Na.Ka.No.10901/97/Pa.2 dated 30.09.1997 confirming the order of the second respondent in S.O.No.9138/90 P2 dated 31.03.1997 and quash the same.
- - -
For Petitioner : Mr.L.Chandrakumar
For Respondents : Mr.A.N.Purushothaman
Government Advocate (Forests)
O R D E R
The Original Application in O.A.No.8419 of 1998 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2. The petitioner was employed as Forest Watcher in Baram Beat, O.Valley Village in Nilgiris District. While so a charge memo dated 26.02.1994 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued. It was alleged that there was illegal felling of trees and that the same was found by the petitioner during his checks on 02.03.1990 and 03.03.1990. However, he did not proceed against those persons. The petitioner demanded Rs.1,000/- for removing those trees. Later, he received Rs.300/- through a Forest Guard Mr.Bala Singh on 09.03.1990. As he did not receive the demanded amount, he submitted a report as if the illegal felling took place on 13.03.1990 at some other place and a case was registered by him on 16.03.1990.
3. Two charges were made in the charge memo. In the first charge, it was stated that due to the illegal felling of trees, there was a loss of Rs.6,000/- to the Government. In the second charge, which was alleged that he demanded Rs.1,000/- for removing the trees which were cut illegally and ultimately he received Rs.300/- from Mr.Bala Singh, Forest Guard on 09.03.1990. Since he did not receive the demanded amount, he registered a case on 16.03.1990 as if he found the illegal felling of trees on 13.03.1990 at a different place.
4. The petitioner denied the allegations. An enquiry was held. The Enquiry Officer held that the charges were established. Based on the findings, the second respondent imposed the punishment of recovery of Rs.6,000/- towards the loss caused to the Government and also imposed the punishment of stoppage of increment for two years with cumulative effect.
5. The petitioner filed an appeal dated 25.06.1997 to the first respondent. The petitioner categorically stated in the appeal that while the alleged loss caused to the Government was quantified at Rs.6,000/-, a recovery of Rs.15,000/- was made in total by imposing the punishment of recovery of Rs.6,000/- from the petitioner, Rs.6,000/- from Mr.B.Sivakumar, Forester and Rs.3,000/- from Mr.Bala Singh, Forest Guard. Therefore, it is stated that the punishment was excessive and without application of mind. The first respondent passed an order dated 13.09.1997, rejecting the appeal.
6. Aggrieved by the same, the petitioner filed O.A.No.8419 of 1998 (W.P.No.33853 of 2006) to quash the aforesaid orders of the first and second respondents imposing the punishment of recovery of Rs.6,000/- and stoppage of increment for two years with cumulative effect.
7. The respondents filed a reply affidavit. It is stated that the punishment was imposed after conducting the enquiry. Since the charges were established in the enquiry, the punishment was imposed. It is further stated that the appellate authority considered the entire materials and correctly rejected the appeal.
8. Heard Mr.L.Chandrakumar, learned counsel for the petitioner and Mr.A.N.Purushothaman, learned Government Advocate (Forests) for the respondents.
9. The learned counsel for the petitioner confines his argument to the non-application of mind by the first respondent as to the punishment imposed on the petitioner. It is submitted that when the petitioner categorically stated in the appeal that while the total loss suffered by the Government was at Rs.6,000/-, the recovery of Rs.15,000/- was made from three persons at the rate of Rs.6,000/- from the petitioner, Rs.6,000/- from Mr.B.Sivakumar, Forester and Rs.3,000/- from Mr.Bala Singh, Forest Guard. This aspect was not considered by the first respondent while disposing of the appeal. According to the petitioner, the order of the first respondent is thus not in conformity with Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The learned counsel also points out that the reply erroneously states that there was a recovery of Rs.1,000/-
10. The learned Government Advocate for Forests submits that due to typographical error, Rs.1,000/- was mistakenly typed, instead of Rs.6,000/-.
11. I have considered the submissions made on either side.
Rule 23(1) which is relevant for the purpose of this case is extracted here-under:-
“23.(1) In the case of an appeal against an order imposing any penalty specified in rule 8 or 9, the appellate authority shall consider–
(a) Whether the facts on which the order was based have been established;
(b) Whether the facts established afford sufficient ground for taking action; and
(c) Whether the penalty is excessive, adequate or inadequate and pass orders–
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;”
12. As correctly contended by the learned counsel for the petitioner, while the petitioner specifically pleaded in the appeal that the punishment was excessive as the loss alleged in the charge sheet itself for Rs.6,000/-, totally Rs.15,000/- recovered from three persons including the petitioner at the rate of Rs.6,000/- from the petitioner, Rs.6,000/- from Mr.B.Sivakumar, Forester and Rs.3,000/- from Mr.Bala Singh, Forest Guard, the same was not at all considered by the first respondent. The said specific plea raised by the petitioner in the appeal was not considered by the first respondent in the order of the appellate authority dated 13.09.1997. The relevant portion of the order of the appellate authority is extracted here-under:-
“khtl;l td mYtyhpd; ,Wjp Mizia vjph;j;J tdf;fhtyh; 25/06/1997k; njjp tdg;ghJfhtyUf;F nky;KiwaPL bra;Js;shh;/ nky;KiwaPL rk;ge;jg;gl;l Mtz’;fSld; ghprPyid bra;ag;gl;lJ/ nky;KiwaPl;oy;. Vw;fdnt rkhjhdj;jpy; Twpa fUj;Jf;fisna bjhptpj;Js;shh;/ g[jpa fUj;Jf;fs; VJk; ,y;iy/ khtl;l td mYtyh; rkhjhdj;ijg; ghprPypj;j gpd;dnu ,Wjp Miz tH’;fpa[s;shh;/ nky;KiwaPl;od; kPJ fPH;f;fz;lthW Miz tH’;fg;gLfpwJ/”
It shows that the first respondent failed to apply his mind as to the pleading of the petitioner in the appeal regarding excessive punishment and thus the appellate order of the first respondent is not in conformity with the Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Further, in the reply affidavit it is erroneously stated that a sum of Rs.1,000/- was recovered from his salary towards the loss suffered by the Government.
13. In these circumstances, the impugned order is quashed and the matter is remanded back to the first respondent to decide the quantum of punishment. The first respondent is directed to pass a fresh order within a period of twelve weeks from the date of receipt of a copy of this order.
D.HARIPARANTHAMAN, J.
r n s
14. Accordingly, the writ petition is allowed to the extent indicated above. No costs.
18.01.2010
Index : Yes.
Internet : Yes.
rns
To
1. The Conservator of Forests,
Coimbatore Circle,
Coimbatore.
2. The District Forest Officer,
Gudalore Division,
Gudalore.
W.P.No.33853 of 2006