Challenge in this Writ Petition is with regard to the jurisdiction of the respondent to suspend the petitioner from service.
2. Short facts leading to the Writ Petition are as follows:
The petitioner is a Co-operative Sub Registrar (Public Distribution System), Nangavalli Block, Salem District under the control of the Deputy Registrar (Public Distribution System), Salem. The Registrar of Cooperative Societies, Chennai, is the appointing authority. In the year 2008, the Regional Deputy Registrar (Housing) Salem Region, Salem issued an order in Rc.No.16592/2004 A, dated 26.05.2008, appointed him as Special Officer for the following Co-operative Socieites, i) Ponnamma Pettai Co-operative Building Society, ii) Annai Sandhiya Urban Co-operative Housing Society, iii) B.Kumarapalayam Co-operative Building Society, iv) Namakkal Co-operative Housing Society, v) Swarnapuri Co-operative House Building Society, vi) Salem Co-operative Housing Society and vii) Dr.Ambedkar Salem City Co-operative House Building Society. He has further submitted that he worked as Special Officer of Dr.Ambedkar Salem City Co-operative House Building Society from 26-5-2008 to 2-7-2008. On 21-6-2008, the Registrar of Cooperative Societies (Housing), conducted a meeting of the Special Officers of various Co-operative Housing Societies in Salem Region. He attended the said meeting. However, the Assistant Secretary/Secretary (in-charge) of the said society, Mr.Krishnamurthy did not attend the meeting. Since several complaints were received against him, the Registrar issued oral instructions to the petitioner to place him under suspension. As per the said oral order, the petitioner issued an order on 21-6-2008, placing the said Mr.Krishnamoorthy, Assistant Secretary/Secretary (in-charge) of the said society, under suspension and thereafter, sent a message to the Registrar on the same day, by fax and Courier. Since 22-6-2008 happened to be Sunday and a holiday, he dispatched the order of suspension to the said Mr.Krishnamurthy by registered post on 23-6-2008 and it was received by him on 24-6-2008. However, on 23-6-2008, the said Mr.Krishnamoorthy had executed a sale deed on behalf of the society selling a plot. The petitioner has submitted that he has no role to play in the said transaction. He remitted the sale proceeds to the society on a later date and no loss was caused to the society.
3. The petitioner has further submitted that his predecessor Mr.G.K.Padmanabhan issued a Cheque bearing No.219604, dated 9-6-2008 towards a House Mortgage Loan in favour of one Mr.V.Rathinasamy. Resolution to this effect was also passed by him, when he was the Special Officer. Even though, the petitioner assumed charge as Special Officer of the said society on 26-05-2008, the said Mr.G.K.Padmanabhan issued the cheque dated 9-6-2008 towards the house mortgage loan. The petitioner had no role to play in this transaction also. He submitted a representation to the Registrar of Co-operative Societies, Chennai-10 on 4-12-2008 with a copy marked to the Registrar (Housing) Salem bringing to their notice the said facts. In these circumstances, the Deputy Registrar (Public Distribution System), Salem-7, the respondent has issued the impugned order in Rc.No.794/2009 PDS.l dated 06-03-2009, placing the petitioner under suspension on the ground that he had committed misappropriation of the funds of the society and that an inquiry into grave charges against him is contemplated. The said order of suspension is put to challenge in this Writ Petition.
4. The Deputy Registrar (Public Distribution System), Salem, respondent herein, in his counter affidavit, has submitted that while the petitioner was working under the control of the Deputy Registrar (Housing), Salem, in the year 2008, he was incharge of the post of Special Officer of the Co-operative Societies, as mentioned in the affidavit and he was also working as Special Officer of Dr.Ambedkar Salem City Co-operative Housing Building Society, Salem from 26.05.2008 to 02.07.2008 and it is his duty to verify all the transactions and disbursement of amounts of the society. The Deputy Registrar (Housing), Salem, in his letter, dated 10.11.2008, has reported that when the petitioner was in-charge of Dr.Ambedkar Salem City Co-operative Housing Building Society, Salem, a plot owned by the society was sold by Mr.D.Krishnamoorthy, the Secretary incharge, while he was under suspension and that the petitioner has failed to watch that the sale amount was brought into the accounts of the society and thereby, the petitioner is responsible for the above irregularity.
5. The respondent has further submitted that though there was a direction by the Registrar (Housing), Chennai, dated 21.06.2008, to place Mr.D.Krishnamoorthy, under suspension, the order of suspension has been served belatedly and thereby, the petitioner had colluded with the Secretary incharge in selling the plot illegally. It is further submitted that the Joint Registrar of Co-operative Societies, Salem, in his letter, dated 06.03.2009, has instructed the respondent to place the petitioner under suspension, on the basis of the instructions of the Registrar (Housing), Chennai, dated 02.03.2009, on the ground that the petitioner has committed irregularities in the capacity of Special Officer, Salem City House Building Society, Salem. Therefore, as per the instructions, being the immediate superior officer of the State services, under Rule 14(a)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the respondent, by his order, dated 06.03.2009, has placed the petitioner under suspension.
6. Though the parties have given the factual details as to how and for what reasons, the petitioner was placed under suspension, Mr.P.Rajendran, learned counsel for the petitioner, without traversing into the factual aspects and by referring to Note 1 to Rule 14(a)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, submitted that when the alleged lapses are said to have been committed by the petitioner, when he was working as Special Officer of Dr. Ambedkar Salem City Co-operative House Building Society from 26-5-2008 to 2-7-2008, the immediate superior of the State Service, viz., the Deputy Registrar (Housing), Salem Region, Salem, alone is competent to place the petitioner under suspension. Since the impugned order of suspension has been issued by Deputy Registrar (Public Distribution System), Salem, he has contended that the same is without jurisdiction and therefore, liable to be set aside on that score alone.
7. Referring to the words employed in the impugned order, he submitted that the order reflects pre-determined mind of the authority that the petitioner has committed misappropriation of funds. According to the learned counsel, such a conclusion is arbitrary and it reflects the closed mind of the authority that such a finding cannot be rendered even before formulation of the charges. He has further submitted that the impugned order has been issued with reference to the alleged irregularities, when the petitioner was working as Special Officer of Dr. Ambedkar Salem City Co-operative House Building Society from 26-5-2008 to 2-7-2008 and that the petitioner has already handed over the charges of the said society, nine months ago and therefore, the order of suspension at this length of time, is unwarranted.
8. Per contra, Mr.P.Subramanian, learned Additional Government Pleader submitted that as per Rule 14(a)(1) of the Rules, an order of suspension may be made on a member of a Subordinate Service by his "immediate superior officer of the State Services" or where the appointing authority for such members is an officer of subordinate services, such officer or any higher authority. He further submitted that when the instructions were received from the Joint Registrar of Co-operative Societies, Salem, to place the petitioner under suspension, he was working under the control of Deputy Registrar (PDS), Salem and therefore, the immediate superior officer, as per the above ruling is Deputy Registrar (PDS), Salem and not the Deputy Registrar (Housing), Salem He therefore submitted that the impugned order is well within the jurisdiction and competence of the respondent.
9. On the merits of the case, learned Additional Government Pleader submitted that the Deputy Registrar (Housing), Salem, in his letter, dated 10.11.2008, has informed that the Special Officer of the Society, in his letter, dated 08.11.2008, reported that while taking inspection of the accounts of the society, irregularities were found in the funds of the society and that the petitioner has failed to supervise the accounts of the society and thereby, responsible for the misappropriation of the funds of the Society. Based on the preliminary report of the Special Officer, it was felt necessary in public interest to place the petitioner under suspension from service.
10. On the basis of the averments in Paragraphs C and D in the counter affidavit, learned Additional Government Pleader further submitted that as the Special Officer of the society, the petitioner is fully responsible for the misappropriation of the funds of the society and therefore, there is no manifest illegality in not indicating the entire facts or reasons in the impugned order of suspension. He further submitted that as and when the charges are framed, it is always open to the petitioner to submit his explanation regarding misappropriation and therefore, the reasons given for suspending the petitioner, cannot be said to be pre-determination. He further submitted that there is no inordinate delay in placing the petitioner under suspension and whenever, disciplinary action is taken against an erring servant/employee of the society, it requires sometime for collection of evidence and materials to be placed before the higher authorities for approval/permission etc. In these circumstances, he prayed that the impugned order is valid and therefore, prayed for dismissal of the Writ Petition.
Heard the learned counsel for the parties and perused the materials available on record.
11. At the outset, since there are factual disputes regarding the allegation of misappropriation, warranting suspension, this Court would not take the role of disciplinary authority to record any findings on the basis of pleadings. It is for the competent authority to formulate definite charges, if he has adequate materials to do so and record its findings. The reasons stated in the impugned order for suspension, is misappropriation. Whether the petitioner has committed misappropriation or not, is a matter for evidence and this Court is unable to subscribe to the contentions of the petitioner that there is pre-determination of mind in coming to the conclusion of guilt against the petitioner. Therefore, the impugned order is tested on the sole ground, whether the respondent, who has issued the order, is competent to do so or not.
12. Power under Rule 14(a)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, has been exercised by the respondent to place the petitioner under suspension. Rule 14(a)(1) is extracted hereunder:
"14.(a)(1) The authority which may impose suspension referred to in rule 17(e) or penalties of -
(i) censure,
(ii) fine,
(iii) withholding of increments, and
(iv) (a) recovery from pay of the whole or part of any pecuniary loss caused to the State Government or the Central Government or to a local body by negligence or breach of orders, or
(b) recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld, where such an order cannot be given effect to, on a member of a Subordinate Service shall be his immediate superior Officer of the State Services or, where the appointing authority for such members is an Officer of the Subordinate Services, such officer or any higher authority;"
13. The expression "Immediate Superior Officer of the State Services" is defined in Notes 1 to 5 of Rule 14(a)(1) of the Rules, thereby, the authority, who is empowered to suspend, in respect of different kinds of services is given. Notes 1 to 5 to the above said rule read as follows:
"Note 1.- In this clause the expression "Immediate Superior Officer of the State Services" means the Immediate Superior Officer of the State Services under whom the delinquent was working at the time when lapses were committed and includes his successor in office.
Note 2.- The expression "Immediate Superior Officer of the State Services" shall, in its application to the members of the Tamil Nadu Jail Subordinate Service, the Tamil Nadu Ministerial Service, the Tamil Nadu General Subordinate Service (Class XXII) and the Tamil Nadu Basic Service employed in the Central Jails, the District Jails, the State Jail for Women, Vellore and the Borstal School be construed as referring to the Superintendent of the Jail or the School concerned.
Note 3.- The expression "Immediate Superior Officer of the State Services" shall, in its application to the members of the Tamil Nadu Secretariat Service, the Tamil Nadu General Subordinate Service (Classes XV and XXII) and the Tamil Nadu Basic Service be deemed to be the Under Secretary in charge of the establishment matters of the staff in the department of the Secretariat concerned;
Provided that the expression "Immediate Superior Officer of the State Services" shall, in its application to the drivers, van cleaners and motor cycle messengers in the Chief Secretariat (Class XV of the Tamil Nadu General Subordinate Service), be deemed to include also the Under Secretary, Public Department:
Provided further that the expression "Immediate Superior Officer of the State Services" shall, in its application to the members of the Tamil Nadu Secretariat Service, the Tamil Nadu General Subordinate Service (Classes XV and XXII) and the Tamil Nadu Basic Service, working in the Information and Public Relations Wing of the Public Department, be deemed to be the Under Secretary to Government, Public (Information and Public Relations) Department, Fort St. George, Chennai-600 009.
Note 4.- The expression "Immediate Superior Officer of the State Services" shall, in its application to the members of the Tamil Nadu General Subordinate Service, the Tamil Nadu Ministerial Service and the Tamil Nadu Basic Service, be the District Assistant Director of Statistics, Regional Deputy Director of Statistics or Joint Director of Statistics (Administration) in the Office of the Department of Economics and Statistics, Chennai.
Note 5.- The expression "Immediate Superior Officer of the State Services" shall, in its application to the members of the Tamil Nadu Survey and Land Records Subordinate Service, the Tamil Nadu Ministerial Service, the Tamil Nadu General Subordinate Service and the Tamil Nadu Basic Service employed in the Survey and Land Records establishment include the Deputy / Sub-Collector under whom the member is working and the concerned Assistant Director of Survey and Land Records, as the case may be."
14. Admittedly, the irregularities are alleged to have been committed, when the petitioner was working as Special Officer, Dr.Ambedkar Salem City Co-operative House Building Socieity, Salem District under the control of the Deputy Registrar (Housing), Salem Region. Therefore, as rightly contended by the learned counsel for the petitioner, the "Immediate Superior Officer of the State Services", when the alleged lapses were committed, is the Deputy Registrar (Housing), Salem and therefore, this Court is of the view that the said authority alone is competent to place the petitioner under suspension. According to the petitioner, he has no longer working as Special Officer of the said society and that he had already been shifted from the said society as Co-operative Sub Registrar (PDS), Nangavalli Block, Salem District. The impugned order has been issued by the Deputy Registrar (Public Distribution System), Salem and he has not his S. MANIKUMAR, J.
skm immediate superior officer of the State service, under whom, the delinquent was working at the time when the lapses were committed or he is not the successor in the office also. Therefore, when the statute confers power on a specified authority, the Deputy Registrar (PDS), Salem, under whom control, the petitioner is presently working, has no jurisdiction to place the petitioner under suspension, on the ground of enquiry into the grave charges was required in public interest.
15. For the above said reasons, the impugned order is set aside. The Writ Petition is allowed. It is open to the competent authority to proceed in accordance with the law. No costs. Consequently, connected Miscellaneous Petitions are closed.
.10.2009 skm To The Deputy Registrar, (Public Distribution System), Salem 636 007.
W.P.No.4412 of 2009