BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15/09/2009
CORAM
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
W.P.(MD)No.9000 of 2009
and
M.P.(MD)No.1 of 2009
S.Arasappan ... Petitioner
Vs
1.The Secretary to Government,
Departmental Promotion Committee
for Empanelment and Promotion as
Assistant Conservators for the year 2008-2009
rep. Environment and Forests Department,
Fort St. George,
Chennai-600 009.
2.The Principal Chief Conservator of Forests,
Panagal Buildings,
Chennai-600 015.
3.The Additional Principal Chief Conservator of Forest,
[Forest Administration]
O/o.The Principal Chief Conservator of Forests,
Chennai-600 015.
4.The Conservator of Forests,
Virudhunagar Circle,
Virudhunagar. ... Respondents
Writ Petition has been filed under Article 226 of the Constitution of
India praying for the issuance of a writ of Certiorarified Mandamus, to call for
the records relating to the orders in [1]Pro,No.Aa.Aa.3/68157/1/07, dated
21.05.2008 of the third respondent and [2] Pro.No.C/2867/07, dated 31.05.2007 of
the fourth respondent to quash the same and to issue consequentially directions
to the respondents 1 and 2 to include the name of the petitioner in the
appropriate place in the ensuing panel as Assistant Conservator of Forests for
the year 2008-2009 and to consequently promote the petitioner as such with all
benefits, notwithstanding and without reference to the order of punishment in
Pro.C/2867/07, dated 31.05.2007 of the fourth respondent as confirmed by the
third respondent in Pro.Aa.Aa.3/68157/1/07, dated 21.05.2008 .
!For Petitioner ... Mr.M.Ravi
^For Respondents ... Mr.K.Balasubramanian
Additional Government Pleader
:ORDER
Heard both sides.
2.The petitioner was appointed as Forester and joined service in Arasu
Rubber Corporation Ltd. Nagercoil on 21.02.1980. Thereafter, he was directly
recruited through the Tamil Nadu Public Service Commission as Forest Ranger and
he worked as Forest Ranger, Social Forestry Range, Rajapalayam, Virudhunagar
Division from 01.11.2002 to 08.06.2005. In respect of certain lapses in the
execution of TAP works known as Malaiyapuram Abedkar Nagar Project Works 2004-
2005 and consequent loss to the Government, the Division Forest Officer, Social
Forestry Range, Virudhnagar Division, by his proceedings, dated 06.03.2007
issued a show cause memo under Rule 17(a) of the Tamil Nadu Civil Services (D &
A) Rule. The petitioner submitted his reply, dated 17.04.2007 wherein he has
stated that he was not responsible for any such lapses, but the 4th respondent
without considering the reply of the petitioner in proper perspective, based on
the remarks by the Divisional Forest Officer, Sapthur Range, passed orders on
31.05.2007 imposing the punishment of stoppage of increment for two years
without any cumulative effect.
3.Aggrieved by the same, the petitioner filed appeal to the Additional
Principal Chief Conservator of Forests (Forest Administration) Chennai, and the
said Authority also rejected the appeal, by his proceedings in
Pro.No.Aa.Aa.3/68157-1/07, dated 21.05.2008, which is challenged in this writ
petition.
4.Mr. M.Ravi, the learned counsel appearing for the petitioner submitted
that the 3rd respondent without passing any speaking order and without
application of mind, rejected the appeal and it is against the principles
settled by this Court. He further contended that one Mr.I.Subramanian, who was
also charged for the same misconduct and was imposed with the same penalty,
filed the appeal before the 2nd respondent and the 2nd respondent modified the
order of punishment and imposed strict warning and set aside the order of
stoppage of increment with cumulative effect. Further he was also given
promotion whereas the petitioner’s appeal was rejected and he was not given
promotion.
5.The learned counsel appearing for the petitioner relied upon the
judgement of this Honourable court reported in 2008 Writ L.R.86 in the cae of
1.the Joint Commissioenr of Police, Traffic zone,Vepery, Chennai,2.The Deputy
Commissioner of Police, Traffic (North) Vepery, Chennai-7 vs. G.Anandan PC 12163
and in W.P.No.28396 of 2008 and W.P.No.23751 of 2008 and submitted that in those
judgments, it has been held that the punishment of stoppage of two increment
without cumulative effect for two years is not a major punishment and therefore,
even assuming that the appeal has been rejected, he can be considered for
promotion during the currency of punishment.
6.The learned Additional Government Pleader, submitted that it is not
correct to state that Mr.I.Subramanian was left off with a strict warning only.
Accordingly to the learned Additional Government Pleader, the order of the 2nd
respondent in letting of Mr.I.Subramanian with strict warning was reviewed and
was set aside as per the Rule 35 and the original punishment was restored.
7.According to the learned Additional Government Pleader, there is no
infirmity in the order passed by the respondents and after giving sufficient
opportunities and on the basis of the records, the order was passed and there is
no need to conduct any enquiry, as action was initiated under 17-A of the Tamil
Nadu Civil Services (Discipline and Appeal) Rules.
8.According to the learned counsel appearing for the petitioner,
Mr.M.Ravi, having regard to the judgments relied upon by him as stated above,
even assuming that the charges are proved and the punishment was proper, it
would not stand in the way of giving promotion.
9.In the judgments referred to above, the learned Judge relied upon the
judmgnent in 2008(5)MLJ 350 in the case of Subramanian v. Government of Tamil
Nadu, rep by its Secretary, Chennai and others and as per the judgment rendered
by this court, it is made clear that the punishment awarded to the petitioner
viz., stoppage of increment for two years without cumulative effect should be
considered as a minor punishment and the currency of the punishment should not
dis-entitle the petitioner from claiming the promotion.
10.It is further seen that the original punishment imposed on
Mr.I.Subramanian was also restored in the review petition. However, the 3rd
respondent, while considering the appeal filed by the petitioner has summarily
rejected the appeal without giving any finding and it is also a non speaking
order. It has been held in the judgment reported in 2006(3) CTC 669 (SC) in the
case of Director (Mkt) I.O.C. Ltd., vs, Santosh Kumar and in 2008(6) MLJ 882, in
the case of T.Bapuraj vs. Commissioner of Police, Chennai and others that non
speaking order of the appellate authority is liable to be set aside.
11.Therefore, the order of the 3rd respondent is set aside and the 3rd
respondent is directed to consider the appeal of the petitioner on merits.
Having regard to the fact that even assuming that the petitioner has suffered
the punishment of stoppage of increment for two years without cumulative
effect, as per the judgement of this Honourable court as referred to above, the
punishment is a minor punishment and hence, that would not stand in the way of
considering the case of the petitioner for promotion and hence, the respondents
1 and 2 are directed to consider the name of the petitioner for promotion,
including his name in the promotion panel, as Asst. conservator of Forest for
the year 2008-2009 .
12.With the above observations, the writ petition is allowed.
Consequently, connected miscellaneous Petition is closed. No costs.
er
To,
1.The Secretary to Government,
Departmental Promotion Committee
for Empanelment and Promotion as
Assistant Conservators for the year 2008-2009
rep. Environment and Forests Department,
Fort St. George,
Chennai-600 009.
2.The Principal Chief Conservator of Forests,
Panagal Buildings,
Chennai-600 015.
3.The Additional Principal Chief Conservator of Forest,
[Forest Administration]
O/o.The Principal Chief Conservator of Forests,
Chennai-600 015.
4.The Conservator of Forests,
Virudhunagar Circle,
Virudhunagar.
5.The Additional Government Pleader,
Madurai Bench of Madras High Court,
Madurai.