By mutual consent of the learned counsel on either side, this petition is taken up for final disposal.
2. The challenge in this writ petition is to the order of the first respondent in G.O.(1)NO.215 Cooperative Food and Consumer Protection (CLI) Department, dated 19.06.2008 enhancing the punishment awarded against the petitioner.
3.1. The case of the petitioner is that he joined as Junior Inspector of Co-operative Societies on 13.04.1987 and he became Senior Inspector in the year 1991. The petitioner presently working as Co-operative Sub Registrar/Field Officer at Thuckalay. When he was working as Special Officer at Kandanvilai Primary Agricultural Bank at Kandanvilai, Kanyakumari District, a charge memo dated 28.02.2002 was issued against the petitioner under Rule 17(b) of the Tamil Nadu Civil Service (Disciplinary & Appeal) Rules (for short "TNCS (D&A) Rules") on the basis of six charges. The petitioner has given a detailed reply through his letter dated 05.06.2002 denying the allegations. The petitioner further gave his explanation dated 01.10.2003. But the Joint Registrar of Co-operative Societies declined to accept the explanation of the petitioner and held as per the proceedings dated 26.12.2003 that in respect of charge 1, certain allegations are proved and certain allegations are not proved ; charge No.4 is not proved and charges 2, 3, 5 and 6 are proved. Therefore, on the basis of findings, the Joint Registrar through his order dated 26.12.2003 imposed the punishment of stoppage of increment for a period of six months with cumulative effect and the said punishment shall not affect the pension of the petitioner.
3.2. The petitioner, being aggrieved against the said order, preferred an appeal dated 05.02.2004 to the Registrar of Co-operative Societies, Chennai, as per rule 19 of TNCS (D & A) Rules. The Registrar of Co-operative Societies, in his proceedings dated 06.04.2004 rejected the appeal of the petitioner and confirmed the punishment imposed by the Joint Registrar of Co- operative Societies. Thereafter, the petitioner has not preferred any revision against the order passed in his appeal.
3.3. However, the Government initiated suo-motu proceedings to enhance the punishment imposed on the petitioner and issued notice dated 21.01.2006. The petitioner submitted his explanation through his letter dated 10.03.2006. But the first respondent passed the impugned order dated 19.06.2008 enhancing the punishment of stoppage of increment from six months to two years with cumulative effect and further stating that the punishment will also affect the pension. Being aggrieved against the said order, the petitioner has been constrained to approach this Court.
4.1. Mr.S.Sundaresan, learned counsel for the petitioner while assailing the impugned order put forward the following contentions :
(i) The impugned order is a non-speaking order and the same does not contain any reason and it was passed merely stating that the explanation of the delinquent is not acceptable and except that no reason has been given for rejecting the explanation ;
(ii) The provision under Rule 36 of the TNCS (D&A) Rules prescribes that the application for revision shall be dealt with in the same manner as if it were an appeal under these rules ;
(iii) The impugned order reveals that the revisional authority has not applied its independent mind ;
(iv) The first respondent is only for enhancing the punishment right from the beginning as the same is evident from the show-cause notice dated 21.01.2006 and the contents of the show-cause notice implies that the revisional authority has determined to enhance the punishment ;
(v) Though the power under Rule 36 of the TNCS (D&A) Rules has not prescribed any limit, the Government cannot take suo-motu action as per its own will and revise the punishment especially when the scope of punishment is sought to be enhanced ; In this case, the original order of punishment was passed on 26.12.2003 and the same was implemented in the month of January 2004 and the petitioner suffered the punishment and completed in June 2004, but only after four years from the date of original order, the revisional authority enhanced the punishment which is highly arbitrary and unjust.
(vi) The impugned order of enhancement of punishment is wholly unjustified as the revision itself is not based on any appeal or revision by the petitioner, but based on a petition by one fictitious person, viz., Mr.S.Mohan. As per the letter dated 23.03.1993 of the Secretary to the Government, Personnel and Administrative Reforms Department, the allegation against the Government servant on a petition addressed to higher authorities should avoid of taking action again on copies of petition on which the action has already been taken. In the instant case, the disciplinary proceedings are completed and reached finality and the petitioner has also suffered punishment and only after the lapse of four years, the first respondent initiated suo-motu proceedings on the basis of the petition of one Mr.S.Mohan with a view to enhance the punishment and therefore, the revision itself is null and void;
(vii) Rule 17(b) of the TNCS (D&A) Rules provides for personal hearing, but the petitioner was not heard before passing the impugned order and as such, the impugned order was passed in violation of principles of natural justice ;
(viii) The charge memo itself was issued without jurisdiction as the Deputy Registrar, who has issued the charge memo is not the appointing authority and as such, any punishment flowing from such charge memo is unsustainable.
(ix) The impugned suo-motu proceedings was initiated beyond the period of limitation as the same was not initiated within a period of six months as contemplated under Rule 36(1)(iii) of the TNCS (D&A) Rules since the original order of awarding punishment was passed by the disciplinary authority on 26.12.2003 and the appellate authority confirmed the same by its order dated 06.04.2004 and the suo-motu proceedings was initiated only on 21.01.2006 by serving show-cause notice and therefore, the impugned proceedings is barred by limitation.
4.2. In support of his contentions, the learned counsel for the petitioner would place reliance on the following decisions : (1)M.Nagarajan and others V. The Registrar of High Court, Madras and another [(2004) 3 LW 2] ;
(2)Arivuselvan V. State of Tamil Nadu represented by the Secretary to the Government (2008 (5) MLJ 1327) ;
(3)N.Sivakumaran V. State of Tamil Nadu (2009 (1) MLJ 701); (4)N.Bose V. State of Tamil Nadu (2009 (1) MLJ 1049) ;
(5)S.Jeyapal v. Secretary to Government (2009 (5) MLJ 1578); (6)A.Bommusamy V. The Government of Tamil Nadu [2007 (3) CTC 518 (DB)] ; and (7)A.Arunagiri V. Principal Commissioner & Commissioner for Revenue Administration [(2009) 3 MLJ 991] ;
5. Per contra, Mr.R.Manoharan, learned Government Advocate contended that there is no illegality or infirmity in the impugned order of enhancement of punishment passed by the first respondent. It is contended that the first respondent, only after giving opportunity to the petitioner, proceeded to pass the impugned order of enhancement of punishment. The learned Government Advocate would submit that the explanation offered by the petitioner was also considered and therefore, no ground is made out warranting the interference of this Court in the impugned order of enhancement of punishment.
6. I have carefully considered the rival contentions put forward by either side and perused the materials available on record.
7. The fact remains that the petitioner faced disciplinary proceedings and ultimately suffered punishment of stoppage of increment for a period of six months without affecting his pension benefits and thereafter, preferred an appeal and the said appeal was also rejected confirming the original order of punishment awarded as stated above. It is pertinent to note that the original order of awarding punishment was passed by the disciplinary authority as early as on 26.12.2003. The petitioner challenged the said order by preferring an appeal and the appeal was also rejected by order dated 06.04.2004. Thereafter, the petitioner did not prefer any appeal or revision against the order dated 06.04.2004 and as such, the said order has already reached finality. Added to the above said admitted fact, it is seen that the petitioner had also suffered punishment and punishment was completed in the month of June 2004 itself. But, curiously and strangely, after the lapse of two years from the date of order of the appellate authority and after the lapse of 3 years from the date of award of punishment passed by the disciplinary authority, the petitioner was served with the show-cause notice dated 21.01.2006 for initiating suo-motu action, that too only on the basis of the petition presented by one Mr.S.Mohan which is very much evident from the impugned order itself.
8. At this juncture, it is relevant to refer to the decision of this Court in N.Bose v. State of T.N. Reported in 2009 (1) MLJ 1049 wherein, this Court held as follows :
"It is evident that the suo-moto power can be exercised within a reasonable period. What is a reasonable period depends upon each and every case. Therefore, in the present case the second respondent passed the order in the year 2000 and based on seniority, the petitioner is eligible to be included in the panel for promotion to the post of District Educational Officer and therefore, great prejudice is caused to the petitioner due to the delay in initiation of suo moto power by the first respondent. Hence, the impugned order passed by the first respondent exercising suo moto power under Rule 36 of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, after a lapse of about seven years is found unreasonable and consequently, the impugned order of punishment enhancing the punishment from one of warning to that of withholding increment for one year without cumulative effect is set aside."
9. The learned single Judge of this Court in the above said decision also placed reliance on the decision of the Hon'ble Apex Court in State of H.P. V. Rajkumar Brijender Singh reported in AIR 2004 SC 3218, wherein, in paragraph 6, the Hon'ble Apex Court considered a similar issue of suo-motu revision exercised by the Government after 15 years and held as hereunder : "6. We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under sub-section (3) of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that sub-section (3) provided that such a power may be exercised at any time but this expression does not mean there would be no time-limit or it is infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo moto action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo moto power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and circumstances by reason of which it could be said that exercise of suo moto power after 15 years of the order interferred with was within a reasonable time. That being the position in our view, the order of Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo moto. In a suitable case even though an appeal preferred before the lower appellate authority is withdrawn, may be, by the State. Thus the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under sub-section (3) of Section 20."
10. The principles laid down by the Hon'ble Apex Court as well as this Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also the suo-motu proceedings for enhancement of punishment was initiated after the lapse of 3 years from the date of awarding of punishment on the petitioner by the disciplinary authority and after the lapse of two years from the date of the order of disciplinary authority was confirmed by the appellate authority. There is absolutely no explanation whatsoever forthcoming for such inordinate delay in initiating suo-motu proceedings for enhancement of punishment. Therefore, this Court has no hesitation to hold that such unreasonable lapse of time and delayed action vitiates and nullifies the impugned order.
11. It is pertinent to note that the impugned suo-motu proceedings for enhancement of punishment awarded against the petitioner was not initiated on the basis of application of independent mind of the revisional authority, but only at the instance of the petition preferred by one Mr.S.Mohan, who was already having grudge against the petitioner and even the disciplinary proceedings itself was initiated by issuing the charge memo against the petitioner only on the basis of the petition preferred by the very same person, viz., Mr.S.Mohan. Therefore, it is crystal clear that the suo-motu proceedings was initiated for enhancement of punishment only at the instance of the above said Mr.S.Mohan, who has preferred a petition before the revisional authority which demonstrates the total non-application of mind of the revisional authority and as such, the impugned order is vitiated on this ground also.
12. It is relevant to refer to the provision under Rule 36 of the TNCS (D&A) Rules which reads as hereunder :
"RULE 36 - Revision (1) Notwithstanding anything contained in these rule -
(i) the State Government ; or
(ii) the head of the department directly under the State Government, in the case of Government servant serving in a department or office under the control of such head of the department, or department, or
(iii) the appellate authority, other than the State Government, within six months of the date of the order proposed to be revised ; or" ....
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government Servant concerned has been given a reasonable opportunity of making his representation against the penalty proposed .....
(2) (c) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules".
A reading of the above said provision makes it crystal clear that the suo-motu proceedings should be initiated within a period of 6 months from the date of order proposed to be revised and the delinquent officer should be given opportunity of making his representation and the revision shall be dealt with in the same manner as if it were an appeal under these rules. Therefore, the revisional authority is expected to follow the procedure contemplated under the above said rules scrupulously. It is needless to state that the power conferred on the authority shall be exercised in the manner provided under the Statute and not otherwise.
13.0. Rule 36 of the TNCS (D&A) Rules contemplates that three requirements have to be complied with, as stated above, viz., the suo-motu proceedings to be initiated within the period of limitation, reasonable opportunity to be given to the delinquent officer and the revision shall be dealt with in the same method and manner as if it were an appeal under these rules.
13.1. In respect of the first requirement, viz., the question of limitation, it is to be stated, at the outset, that the impugned proceedings is clearly barred by limitation. Rule 36(1)(iii) contemplates that the suo-motu proceedings has to be initiated within a period of six months from the date of the order proposed to be revised. As far as the instant case is concerned, the disciplinary authority passed the order of awarding punishment on the petitioner as early as on 26.12.2003 and the appellate authority confirmed the said order by its order dated 06.04.2004 and the impugned suo-motu proceedings initiated by serving the show-cause notice dated 21.01.2006 and as such, the impugned proceedings is clearly barred by limitation and the impugned order is liable to be quashed.
13.2. The second requirement as per the provision under Rule 36 is that the delinquent officer shall be given reasonable opportunity to put forth his case. But in the instant case, a perusal of the impugned order reveals that the petitioner was not heard before passing the impugned order.
13.3. The third requirement as per provision under Rule 36 is that the revisional authority shall conduct the revision in the same method and manner as that of the appeal. Therefore, it goes without saying that the revisional authority is entitled to re-appreciate and re-assess the materials available on record and to give findings by assigning valid reasons. But, a perusal of the impugned order reveals that the revisional authority merely narrated the facts, incorporated the opinion of the Tamil Nadu Public Service Commission and ultimately, enhanced the punishment by placing reliance on the opinion of the Tamil Nadu Public Service Commission without its application of independent mind. There is absolutely no discussion in respect of the findings given by the disciplinary authority and the appellate authority, no discussion about the defense and explanations of the petitioner and no independent reason assigned for holding that the punishment awarded by the disciplinary authority is disproportionate to the charges necessitating the revisional authority to enhance the punishment. It is pertinent to note that the Hon'ble Apex Court has time and again held that the reasons are the heart beats of the orders. Therefore, this Court has no hesitation to hold that the impugned order is vitiated on the ground of flagrant violation of principles of natural justice.
14. In view of the aforesaid reasons, this Court is constrained to come to the irresistible conclusion to quash the impugned order and accordingly, the impugned order of the first respondent dated 19.06.2008 passed in G.O.(1)NO.215 Cooperative Food and Consumer Protection (CLI) Department is hereby quashed.
This petition is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
gg To
1. The Secretary to Government, Cooperation Food and Consumer Protection Department, Secretariat, Chennai-9.
2. The Registrar of Cooperative Societies, Chennai 10.
3. The Joint Registrar of Cooperative Societies, K.P.Road, Nagercoil - 1.
4. The Deputy Registrar of Cooperative Societies, Thuckalay.