The order of the second respondent in proceedings Na.Ka.No.11878/01/Pa.tho dated 27.12.2006 has been called in question and seeking to quash the same, the present writ petition is filed.
2. (a) The petitioner is working as Junior Assistant in the Office of the Deputy Registrar of Co-operative Society, Cheyyar Circle. It is the case of the petitioner that based on some false set of facts, the disciplinary proceedings were initiated against him by the third respondent and a charge-memo was issued in proceedings dated 30.7.1998.
(b) The first charge is that the petitioner had taken a xerox copy of the proceedings sent by the Joint Registrar to the Deputy Registrar in Proceedings No.13638/98/Pa.Tho., dated 30.6.1998 and filed the same before the Tribunal in O.A.No.5647/1998 and the second charge is that he has not performed his duty in time. As the petitioner has denied the charges, an enquiry was conducted and an enquiry report was submitted to the second respondent, based on which a final order has been passed in Proceedings dated 26.5.2000 imposing the punishment of "Censure". According to the petitioner, in fact, the enquiry officer held that the charges were not proved against him and accordingly, the disciplinary proceedings were closed.
(c) The second respondent after a lapse of six years issued a show cause notice in proceedings dated 20.9.2006 stating that there was a defect in the enquiry conducted in the year 1999 and further that they are not accepting the report of the enquiry officer and accordingly, sought for an explanation from the petitioner. The petitioner had submitted his explanation on 05.10.2006. Without considering any of the factors, the second respondent passed the impugned order imposing the punishment of stoppage of increment for six months without cumulative effect in the proceedings dated 27.12.2006.
(d) The abovesaid proceedings dated 27.12.2006 has been challenged in this petition on the grounds that the impugned order is contrary to law and facts, there is total non-application of mind on the part of the second respondent, the charges under Rule 17(b) was issued by the third respondent in proceedings dated 30.7.1998 and the enquiry officer made a finding that the charges were not proved. The final order was passed in the proceedings on 26.5.2000 imposing the punishment of "Censure". After the final order was passed, the question of not accepting the enquiry report does not arise and the very show cause notice dated 20.9.2006 is unsustainable and the order of the second respondent reviewing the final order is contrary to the rules as contemplated under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
4. (i) The respondents have filed counter. While denying the averments made by the petitioner, they have stated that the petitioner-Thiru K.Jayakumar who is working as Junior Assistant in the Office of Deputy Registrar of Co-operative Societies, Cheyyar, was given a charge-memo dated 30.7.1998 under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, by the Deputy Registrar of Co-operative Societies, Cheyyar for the alleged activities such as tampering of official records and dereliction of his duty as Junior Assistant and the said charges are extracted hereunder:
"Charge:1 He has taken Xerox copy of the confidential letter Rc.13633/98 EM, dated 30.06.1998 of the Joint Registrar of Cooperative Societies, Tiruvannamalai without permission of the Deputy Registrar of Cooperative Societies, Cheyyar, thereby he had tampered the Government secrecy. By making use of the abovesaid Xerox copy, he has filed O.A.No.5647 of 99 before the Tamil Nadu Administrative Tribunal and obtained stay on 16.07.1998 of the proceedings Rc.13633/98 EM, dated 30.06.1998.
Charge:2 He has failed to discharge his duties as Junior Assistant i.e. improper maintenance of tapal distribution register, Special tapal register, Register of D.O.letters, Despatch Register and Stamp Register. Also failed to submit library book list, Furniture list and charge list."
Denying the above charges, the petitioner submitted his explanation on 28.10.1998 and a domestic enquiry was ordered and the enquiry officer submitted his report on 22.6.1999 holding that the charges levelled against the petitioner were not held proved. However, the disposing authority, namely, the second respondent has come to the conclusion that the charges levelled against the petitioner were held proved and fit for heavy punishment. However, by considering the explanation given by the petitioner, he was awarded 'censure' by the second respondent in his proceedings dated 26.5.2000.
(ii) In the counter, it is also stated that while taking office inspection of the second respondent's office by the Additional Registrar(Marketing, Planning and Development), Office of the Registrar of Cooperative Societies, Chennai the Additional Registrar of Co-operative Societies has reviewed the disciplinary cases. While giving remarks on the aforesaid disciplinary case he has stated that considering the gravity of charges, the punishment awarded to the petitioner was insufficient. Hence, it requires revision. So the connected records and files should be sent to the Registrar of Cooperative Societies for onward transmission to the Government, who is the competent authority to take revision under Rule 36. Accordingly, the records and files were submitted to the Government for revision. After examination, the Government in their letter No.20753/CL2/05-7, Cooperation, Food and Consumer Protection Department, dated 30.5.2006 has stated that the disposing authority has taken decision against the enquiry officer, he has to give show cause to the delinquent officer for his further explanation for such deviation. But in this case such a procedure has not been followed. Hence, procedural flaw has been occurred. So the 2nd respondent was directed to rectify the procedural flaw and to proceed further in the matter. Accordingly, the petitioner was given show cause notice on 20.9.2006, for which he had submitted his explanation on 05.10.2006. After considering the merits of the case and gravity of the charges, the second respondent had disposed the charge memo on 30.7.98 by giving punishment of stoppage of increment for six months without cumulative effect excluding leave period vide Proceedings No.11878/01, EM dated 27.12.2006. The petitioner has received the said order on 9.1.2007. Against the said punishment, the petitioner had obtained interim stay.
(iii) It is stated that the impugned order is well within law and on facts and on direction of the Government the charge-memo was disposed of after following the due procedure laid down under the rules and with proper application of mind and on careful examination of the records, after duly following the procedure laid down under the rules, the second respondent has passed the order.
(iv) According to the respondents, it is the discretionary power of the disposing authority whether to accept or not to accept the findings of the enquiry officer. In this case though the enquiry officer submitted the enquiry report that the charges were not proved, the disposing authority using his discretionary power had come to the conclusion that the charges levelled against the petitioner were held proved and the petitioner was awarded censure for the proved charges. While taking inspection of the second respondent's office by the Additional Registrar(MPD) office of the Registrar of Cooperative Societies, Chennai it was observed that the punishment awarded to the petitioner i.e., censure is found insufficient. Hence, it required revision and the connected papers should be sent to the Registrar of Cooperative Societies, Chennai for onward transmission to the Government who, in this case is the competent authority to revise the order under Rule 36. Accordingly, revision was taken up by the Government. The Government in its letter No.20753/CL2/05-7, Cooperation, Food and Consumer Protection Department dated 30.05.2006 stated that a procedural flaw has occurred in the said disciplinary case. Hence, the disposing authority has taken action to rectify the flaw and to proceed further on the directions of the Government. Therefore, the power of the Government to review the order as per the rule has been followed and the impugned order has been passed by the second respondent in accordance with law and after following the due procedure. Hence, the respondents prayed for dismissal of the writ petition.
5. On the above background pleadings, I have heard Mr.S.M.Subramanian, learned counsel for the petitioner and Mrs.Dakshayani Reddy, learned Government Advocate for the respondents.
6. It is the foremost contention of the learned counsel for the petitioner that as per rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the authority is empowered to revise the order if it is the head of the department, within six months or within a reasonable time by the Government. In this case, the authority, after a lapse of 6= years, contrary to the rules, has revised the order on suo-motu revision. The said Rule is extracted hereunder.
"(1)Notwithstanding anything contained in these rules-
(i) the State Government; or
(ii)the head of the department directly under the State Government, in the case of a Government servant serving in a department or office under the control of such head of the department, or departments; or
(iii)the appellate authority, other than the State Government, within six months of the date of the order proposed to be revised; or
(iv)any other authority specified in this behalf by the State Government by a general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on their or its own motion or otherwise call for the records of any inquiry and after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary and revise any order made under these rules, may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c)remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d)pass such other orders as they or it may deem fit;"
(6a) In support of his contentions, the leaned counsel for the petitioner has relied on a decision of this Court reported in 1998 1 CTC 283 (A.THANGAVELU V. THE TAMIL NADU CIVIL SUPPLIES CORPORATION). Relevant portion is extracted thus:
"9. The reading of the above Rule makes the position clear that if the appellate authority wants to review the order of the Regional Manager (Original authority) the same has to be done within six months from the date of the order. In this case, as seen from the proceedings of the respondent in Rc.G-4/85431/89 dated 16.11.1989 i.e., beyond the period of six months prescribed under sub-clause (iii) of the above said Rules. I have already mentioned that the date of order and the review order dated 16.11.1989 has not been disputed by the learned counsel appearing for the petitioner. In the light of the above factual position, I am of the view that the first contention of the learned counsel appearing for the petitioner is well-founded. If the first contention is accepted there is no need to go into the other contentions raised by the learned counsel appearing for the petitioner. I am satisfied that the action of the respondent reviewing the order of the Regional Manager dated 12.4.1989 on 16.11.1989 is clearly prohibited as per sub-clause (iii) of the above referred Rule. Hence, I hold that the proceedings initiated by the respondents on 16.11.1989 is in violation of Rule 36(1)(iii) of the Rules. In those circumstances, as already stated I need not go into the other factual position. Accordingly, the impugned order based on the proceedings of the respondent dated 16.11.1989 is quashed."
(6b) The learned counsel has referred to yet another decision of this Court reported in 2009 (1) MLJ 1049 (N.BOSE V. STATE OF T.N.). In paras 13 and 14 it is held as under:
"13.In the decision in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy AIR 2003 SC 3592:(2003)7 SCC 667 also similar provision was considered by the Supreme Court with regard to the power of suo motu review. In paragraph 12 and 13, it has been held as follows:
"12. The learned single Judge has referred to and relied on various decisions including the decisions of this Court as to how the use of the words "at any time" in sub-section (4) of Section 50-B of the Act should be understood. In the impugned order the Division Bench of the High Court approves and affirms the decision of the learned single Judge. Where a statute provides any suo moto power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is "reasonable time: has to be determined on the facts of each case.
13.In the light of what is stated above, we are of the view that the Division Bench of the High Court was right in affirming the view of the learned single Judge of the High Court that the suo moto power under sub-section (4) of Section 50-B of the Act is to be exercised within a reasonable time."
14.From the above referred judgment, it is evident that suo moto power can be exercised within a reasonable period. What is a reasonable period, depends upon each and every case and as stated supra, in this case, the second respondent passed the order in the year 2000 and based on the seniority, the petitioner is eligible to be included in the panel for the promotion to the post of District Educational Officer and therefore, great prejudice is cased 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. It is the specific case of the petitioner as well as the respondents that only due to the currency of the said punishment, the petitioner was not given the promoted post of District Educational Officer, as he is otherwise eligible to the post as per his seniority. The same is also made clear in the Letter No.8353/A1/2007-17, dated 31.8.2007 of the first respondent. Hence, Admittedly, the petitioner's junior V.Natarajan was given promotion, by order, dated 30.7.2007, hence, the petitioner is eligible to be promoted as District Educational Officer and the respondents are bound to pass revised orders regarding the petitioner's promotion as District Educational Officer."
7. On the other hand, the learned Government Advocate for the respondents would contend that the Additional Registrar (MPD), Office of the Registrar of Cooperative Societies, Chennai on inspection found that as aforesaid in the disciplinary case considering the gravity of charges and the punishment awarded to the petitioner was insufficient and therefore, directed the concerned authority to send the records and files to the Registrar of Co-operative Societies for onward transmission to the Government, who is the competent authority to take revision under Rule 36 and after following the due procedure and revise the punishment of censure into that of stoppage of increment for six months without cumulative effect and there is no infirmity in the the said order passed by the revisional authority.
8. I have carefully examined the abovesaid submissions of the learned counsel on either side and perused the material documents and the relevant rules in question.
9. In this case, the petitioner is a Junior Assistant and a charge memo was issued on 30.7.1998 on the allegation that he had taken a xerox copy of the proceedings and filed the same before the Tribunal and also for a charge that he has not performed his duty in time. He submitted his explanation and after holding an enquiry, the authority competent to impose the punishment awarded the punishment of "censure" on 26.5.2000. However, the Additional Registrar (Marketing, Planning and Development) of the Office of Registrar of Co-operative Societies, Chennai reviewed the disciplinary cases. While giving remarks in the instant case he has stated that considering the gravity of charges, the punishment awarded to the petitioner was insufficient. Therefore, he directed the competent authority to send the connected records and files to the Registrar of Co-operative Societies for onward transmission to the Government, who is the competent authority to take a decision under Rule 36. Based on that, the Government has revised the order and accordingly, the Government on examination of the entire records passed the order on 30.5.2006 stating that if the disposing authority has taken its decision against the enquiry officer, he has to give a show cause notice to the delinquent officer to call for further explanation. But in this case, the said procedure had not been followed. The second respondent has been directed to rectify the procedural flaw. Accordingly, the petitioner was given show cause notice on 20.09.2006 and the petitioner has given his explanation on 05.10.2006. By considering the merits of the case, the second respondent had disposed of the charge memo on 30.7.1998 by giving the punishment of stoppage of increment for six months without cumulative effect. The same was challenged without challenging the order of the revisional authority dated 30.5.2006 and according to the petitioner that order was not communicated to him.
10. The question raised in this case is that the revisional authority with an inordinate delay of six and half years contrary to rule 36 has taken suo-motu revision and passed the order revising the punishment of 'Censure' to stoppage of increment for six months without cumulative effect. The said order has not been communicated. Therefore, the Government has directed the second respondent to follow the procedure and by issuing a show-cause notice and then after submitting the explanation by the petitioner the punishment was imposed. In this case, the punishment of 'censure' was imposed on the petitioner on 26.5.2000 and the revisional authority revised the order on 30.5.2006. There was a delay in initiating suo-motu revision. The said order is not challenged by the petitioner. The second respondent who is the competent authority who imposed the earlier punishment was called to pass the revised order as per the direction of the revisional authority. It is settled proposition that suo-motu power can be exercised within a reasonable period. What is the reasonable period depends upon each and every case. The second respondent passed the order in the year 2000. After a lapse of six years based on the inspection of the Additional Registrar of Co-operative Societies, the Government has revised the order and remittal proceedings was passed by the Government directing the second respondent to initiate further proceedings and to impose appropriate punishment.
11. The learned counsel for the respondents has vehemently contended that in the absence of any challenge to the order of the revisional authority it may not be appropriate to interfere with such order and the second respondent is competent to pass that order as there was a remission from the Government directing the second respondent to pass such an order and therefore, there is no infirmity in the order.
12. The petitioner has challenged only the order of the competent authority who imposed the punishment as per the direction of the first respondent. In the impugned order, it is the revision of the order of the revisional authority dated 30.5.2006 and there was a revision under rule 36 based on which the second respondent has passed the order. When such is the position, the power of the revisional authority to look into the matter after a period of six years and thereafter remitting the matter to the second respondent to consider the same is affected by inordinate delay in proceeding with the suo-motu revision and based on which the present impugned order has been passed. The inordinate delay has not been properly explained by the respondents in their counter. The revision has to be taken up in an appropriate time or a reasonable time to be construed in the manner known to law.
13. Considering the circumstances of this case, that the order of punishment of "Censure" was awarded in the year 2000 and the same has been reviewed by the authority in the year 2006 and this factum of the inordinate delay in initiating the revision based on which the impugned order has been passed vitiates the entire proceedings of the respondents and accordingly, the impugned order passed by the 2nd respondent suffers from legal infirmity and the same is set aside.
14. The writ petition is allowed. No costs.
sal To
1.The Registrar of Co-operative Societies Kilpauk Chennai 10
2.The Joint Registrar of Co-operative Societies Thiruvannamalai Region Thiruvannamalai
3.The Deputy Registrar of Co-operative Societies Cheyyar Thiruvannamalai District