This is a case were the second respondent being the Appellate Authority has decided the appeal confirming the original authority's order namely third respondent's order imposing penalty on the petitioner taking note of the fact that the charges against the petitioner are serious in nature. The petitioner who is working as a Chief Head Warder at Vellore District was working as Superintendent, Central Prision-I (Convicts), Puzhal, in the year 2006. A charge memo was issued by the third respondent framing charges under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charges are that:-
"1. The petitioner thrashed one Remand Prisoner No.7342 Kutty @ Perumal lodged in Sub Jail, Kancheepuram by lathy on 15.08.2006 which is against the Rule 142, 143 and 144 of TNPM Vol-II.
2. He collected a sum of Rs.100/- as bribe from Tr.Arul, brother-in-law of the Remand prisoner No.7342 Kutty @ Perumal so as to permit him to interview the above prisoner which is against Rule 147 of TNPM Vol-II.
3. He threatened Tr.Arul, who came to interview the Remand Prisoner No.7342 Kutty @ Perumal that he would transfer the said prisoner to Central Prison, Chennai, because he did not give any money to interview the prisoner on 14.08.2006.
4. While in duty, he had failed to prevent the contraband article i.e. a bottle contained alcoholic drinks conducted to cell inside the prison by Remand Prisoner No.7350 Mohan on 15.08.2006, which is against Rule 134(2) of TNPM Vol-II.
5. He instructed Tr.Sairam, Gr.I Warder to enter the name of the Sub Jail Superintendent in the In-Out register on 15.08.2008 on which day the Sub Jail Superintendent was actually not coming to the office. Hence, he instigated the co-staff to make false entry in the In-Out Register which is against the Rule 61 and 62 of of TNPM Vol-II."
2. After the petitioner has submitted his explanation for the charge memo denying the charges, the third respondent has appointed Mr.Manickam, Jailor, Central Prison to conduct enquiry. The Enquiry Officer in his report dated 08.02.2007 has held that all charges are proved and accepting the said Enquiry Officer's report and based on the further explanation submitted by the petitioner, the third respondent has passed order of punishment on 29.03.2007 imposing the punishment of reduction of pay by one stage for two years without cumulative effect.
3. As against the said order of the third respondent, the petitioner has filed Appeal before the second respondent on 25.05.2007 and it is stated that without considering any grounds raised by the petitioner, the second respondent has passed the impugned order. The operative portion of which is as follows:-
" 3) ,th; jw;nghJ Jiwj; jiytUf;F bra;Js;s KiwaPL rPuha;t[ kDthf Vw;fg;gl;L mJ bjhlh;ghf. Fw;wr;rhl;L Fwpg;ghiz. Fw;w";rhl;lg;gl;ltuJ tpsf;fk;. kw;Wk; ,th; jw;nghJ rkh;g;gpj;Js;s rPuha;t[ kD Mfpait rk;ke;jg;gl;l nfhg;g[fSld; vd;dhy; ed;F ghprPypf;fg;gl;lJ/ kDjhuh; (gpiHahsp) kPJ Rkj;jg;gl;Ls;s Ie;J Fw;wr;rhl;LfSk; kpff; fLikahdit/ tprhuiz mjpfhhp Ie;J Fw;wr;rhl;LfSk; vt;tpj re;njfj;jpw;Fk; ,lkpd;wp epU:gpf;fg;gl;Ls;sjhf jPh;khdpj;Js;shh;/ ,e;neh;tpy; ,tUf;F tH';fg;gl;l jz;lid kpjkhdJ jhd;/ nkYk; g[jpjhf kDjhuh; jdJ jug;gpy; cs;s epaha';fs; VJk; bjhptpf;ftpy;iy/ vdnt. ,tuJ KiwaPl;L kDit epuhfhpj;J MizapLfpnwd;/"
4. A reference to the said impugned order makes it clear that there is nothing to infer in the order of the second respondent being Appellate Authority that he has applied his mind. Under the Rule 23 of Tamil Nadu Civil Services (Discipline and Appeal) Rules, which are as follows:
"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;
Provided that -
(i) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv), (v)(c), (vi), (vii) and (viii) of rule 8 and an inquiry under sub-rule (b) of rule 17 has not already been held in the case, the appellate authority shall, subject to the provisions of sub-rule (c) of rule 17, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of sub-rule (b) of rule 17 and thereafter, on a consideration of the proceedings of such inquiry make such orders as it may deem fit;
(ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv), (v)(c), (vi), (vii) and (viii) of rule 8 and an inquiry under sub-rule (b) of rule 17 has already been held in the case, the appellate authority shall, after giving the appellant a reasonable opportunity of making representation against the penalty proposed on the basis of the evidence adduced during the enquiry, make such orders as it may deem fit; and
(iii) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of sub-rule (a) of rule 17 of making representation against such enhanced penalty.
(2) Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers, for reasons to be recorded in writing, that error or defect was not material and has neither caused injustice to the person concerned nor affected the decision of the case."
the Appellate Authority has to consider whether on the facts of the case charges have been made out and there has been sufficient ground for taking action and whether the penalty is excessive, adequate or inadequate. Law is well settled that when the Appellate Authority confirms the order of punishment imposed by the original Authority, no elaborate order need be passed. However, it is well settled that there must be some material to show that the Appellate Authority has applied his mind before passing the order confirming the order of the Original Authority. This is because the Appellate Authority, being the last authority to decide about the fact, the valuable right of the delinquent is in his hands and unless it is shown that prima facie the Appellate Authority has applied his mind, it is not possible to hold that Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules has been followed scrupulously. Considering the said rules Mr.Justice S.Manikumar in "N.Sivakumaran ..vs.. State of Tamil Nadu, represented by the Secretary to Government, Chennai and Others" reported in (2009) 1 MLJ 701, by elaborately discussing about the powers of the Appellate Authority in disciplinary proceedings by referring to various judgments, has held that as per Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, wherein the Appellate Authority has taken a decision to impose penalty under Rules 8 and 9; in respect of the above said three factors mentioned under Rule 23, he is expected to consider which are relevant to the facts and circumstances of the case, held that if a particular manner of dealing with the Appeal is prescribed under the statutory rules, the same has to be scrupulously followed.
5. Even though, in the counter affidavit, it is stated that the Appellate Authority has carefully and methodically gone through the papers and passed the order, the operative portion of the Appellate Authority as elicited above shows that there is nothing to consider that the Appellate Authority has applied his mind, which is the basic rule enumerated under Rule 23 stated above.
6. In such view of the matter, I am of the considered view that the impugned order of the second respondent, the Appellate Authority dated 14.08.2008 is liable to be set aside and accordingly the said order of the second respondent is set aside and the matter is remanded back to the second respondent for a fresh decision to be taken on the Appeal filed by the petitioner dated 25.05.2007 and pass orders in accordance with Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, as stated above. The Appellate Authority shall pass such orders within a period of 12 weeks from the date of receipt of a copy of this order. The Writ Petition stands ordered accordingly. No costs.
30.11.2009 Index : yes/no Internet : yes/no mra To
1.The Additional Director General of Prisons, Chennai - 600 008.
2.The Deputy Inspector General of Police, Chennai - 8.
3.The Superintendent, Central Prison-1 (Convicts), Puzhal, Chennai - 600 006.
P. JYOTHIMANI, J.
mra W.P. No.13815 of 2008 30.11.2009