By consent of both sides, the writ petition is taken up for final disposal.
2.Mr.K.Guru, Additional Government Pleader, takes notice for the respondents.
3.The present writ petition is directed against the impugned order dated 05.05.2017, passed after remand, imposing a punishment of stoppage of increment with cumulative effect for two years on the ground that when such a punishment is imposed by the 2nd respondent, the 2nd respondent should see that the punishment imposed would also affect his future pension and other benefits, for which, a specific reason should be assigned, failing which, this will be amounting to violation of Order 71(2) and 76(3) of the Tamil Nadu Fire and Rescue Service Manual, which contemplates show cause notice stating why punishment of stoppage of increment should not be imposed before passing an order. But there is no such show cause notice has been issued. In addition thereto, there is no allegation for imposing the punishment of stoppage of increment for two years with cumulative effect.
4.It is further submitted that the brief order passed by the authority is neither convincing nor meeting the requirement contemplated by Order 105(3) & (4) of the Tamil Nadu Fire & Rescue Services Manual. Even prior to passing of this order, when a similar non speaking order was passed imposing punishment of stoppage of increment for three years, the petitioner approached the first respondent and since no action was taken, he was constrained to file a writ petition in W.P.(MD) No.22013 of 2016.
5.This Court, on 17.11.2016, while entertaining the said writ petition accepting the grounds taken therein, allowed the writ petition by setting aside the order passed by the first respondent dated 30.09.2016. Accordingly, the matter was remanded back to the appellate authority with a direction to follow the dictum laid down by the Apex Court in the decision in Kranti Associates P Ltd., v. Masood Ahamed Khan reported in 2010 9 SCC 496, as per Order 105(3) & 4 of the Tamil Nadu Fire & Rescue Services Manual and also to take into account the order passed by the disciplinary authority and pass orders after giving an opportunity to the petitioner.
6.In spite of a clear direction is issued to follow the ratio laid down by the Apex Court in the case of Kranti Associates mentioned supra, the present impugned order has been wrongly passed rejecting the case of the petitioner in toto, modifying the punishment from the payment of stoppage of increment for three years with cumulative effect into one of stoppage of increment for a period of two years with cumulative effect.
7.The learned counsel for the petitioner would submit that when a specific ground has been taken before the appellate authority that violating the judgment of the Apex Court cited supra, the impugned order has been passed, it does not specify how the ground taken by the petitioner was untenable or unacceptable, therefore, the order passed by the first respondent failing to consider that the 2nd respondent has imposed a punishment without recording the reason therefor and without issuing show cause notice as contemplated in Rules 71(2) and 76(3) of the Manual is liable to be set aside, it is contended.
8.Contending further it is argued that the first respondent has committed the same error by issuing the impugned order without any reason. Moreover, Order 105(3) and (4) of the Manual categorically provides a detailed procedure to be followed at the time of passing orders in appeal, which contemplates recording reasons for arriving at a conclusion/subjective satisfaction.
9.Before touching the scope of the order 71(2) and 76(3) of the Tamil Nadu Fire and Rescue Services Manual and also 105(3) and 4 of the same Manual, let me go to the veracity of the charges levelled against the petitioner, which are given as under:
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9.The petitioner, on receipt of the said charge memo dated 14.01.2016, denying the same, submitted his detailed explanation. On receipt of the said explanation, dated 22.02.2016, the disciplinary authority finding that the explanations offered were not satisfactory, appointed an Enquiry Officer, who submitted a report on 31.03.2016 and thereafter holding him guilty of charges levelled against him and thereafter, the petitioner was also furnished with a copy of the report to submit his written representation. On receipt of the same, the second show cause notice further explanation has also been submitted on 05.05.2016 and thereafter, the 2nd respondent passed the order of punishment dated 10.05.2016 imposing stoppage of increment for two years with cumulative effect without any reasoning in violation of the Order 105(3) and (4) of the Tamil Nadu Fire and Rescue Services Manual on the same day, he was reinstated in service. The petitioner, aggrieved by the same, preferred an appeal before the first respondent on 30.06.2016. The first respondent also taking note of the allegations made against the petitioner, which were ultimately finding proof by the Enquiry Officer and the 2nd respondent also having accepted the report of the Enquiry Officer, confirmed the same, by an order dated 30.09.2016. The said order was put to challenge in the Writ Petition No.22013 of 2016, taking almost the same grounds taken in the present writ petition. This Court by order dated 17.11.2016 agreeing with the stand taken by the learned counsel for the petitioner that the first respondent failed to follow the dictum laid down by the Apex Court in the decision cited supra and the order 105(3) and (4) of the Manual remanded the matter back with a further direction to give an opportunity of hearing to the petitioner.
10.With these directions, the matter was remanded back to the appellate authority. Thereafter, it is seen that the first respondent has passed the present impugned order thereby modifying the previous punishment of stoppage of increment with three years with cumulative effect into one of stoppage of increment for two years with cumulative effect. Challenging the same, the present writ petition has been filed questioning the correctness of the order impugned dated 05.05.2017.
11.It was pleaded that when the petitioner was imposed with a punishment of stoppage of increment for two years with cumulative effect, it is certainly going to affect his future pension and other benefits. Therefore, the law has been made to ensure that before passing such a drastic order, not only the delinquent, even also the Officer, who is going to pass an order, should be aware of the impact of the order of punishment by assigning a specific reason.
12.A combined reading of the Order 71(2) and 76(3) of the Manual and Regulations 105(3) and (4) vividly show that the disciplinary authority before passing any order imposing a major punishment affecting the pensionary benefits should be conscious of the fact that such a punishment should be imposed against a delinquent officer. This is for the purpose of avoiding a major punishment against any delinquent to avoid any complications at the time of receiving the family pension, after retirement. No doubt, this is a valuable safeguard provided under the aforementioned Rules. But, in the present case, the allegations put against the petitioner, which were established by the Enquiry Officer, clearly show that the petitioner using the office premises, consumed alcohol along with A.Sheik Abdul Khader and thereafter he was found to have abused him and moreover, the said A.Sheik Abdul Khader was also severely attacked causing injuries. When these charges levelled against the petitioner were found proved, both the disciplinary and appellate authority thought it that the Government servant has gone beyond the limit to the extent of using the office premises for consuming liquor, which lead to the altercation and physical injury upon Mr.A.Sheik Abdul Khader. Therefore, to send a clear message, the disciplinary authority has imposed the original punishment of stoppage of increment for three years with cumulative effect. Subsequently the same was also confirmed. Aggrieved by the same, a writ petition was filed by the petitioner stating that the authorities, while imposing the punishment has not assigned any reasons as to how they were aware of the clear impact going to be suffered by the delinquent while receiving pension. Since the present impugned order is passed, after remand, thereby the previous punishment of stoppage of increment with three years has been modified into one of stoppage of increment of two years with cumulative effect, it clearly shows that the first respondent has rightly applied his mind and reduced the punishment. Therefore, this Court is not able to find any infirmity or error in the impugned order. Accordingly, the writ petition fails and the same is accordingly dismissed. No costs.
To
1.The Deputy Director of Fire & Rescue Services, Southern Region (Additional Charge)/District Officer, Fire & Rescue Services, Madurai.
2.The District Officer Fire & Rescue Services, Tirunelveli District .