(JUDGMENT OF THE COURT WAS DELIVERED BY THE HONOURABLE THE CHIEF JUSTICE) Heard Mr.Raja Kalifulla, learned Government Pleader in support of this appeal. Mr.S.Vijayakumar, learned counsel appears for the respondent.
2. The second appellant Revenue Divisional Officer, Cuddalore, had issued a notice to the respondent under Rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (for short 'the Rules'), asking him to show cause as to why he should not be dismissed from service in view of his conviction in Special Case No.3 of 2000 under the Prevention of Corruption Act, 1988. The respondent filed a petition to challenge that show-cause notice and his principal submission was that the notice showed that the appellants were pre-determined in dismissing him from service.
3. In the impugned order, dated 31st July 2008, a learned Single Judge of this Court has referred to a judgment and order passed by this Court in W.P.No.3219 of 2007, dated 29th June 2007, wherein another learned Single Judge had taken a view that the impugned proceedings indicates that the disciplinary authority had made up its mind and had decided to take a departmental action against the person concerned. The aforesaid order passed in W.P.No.3219 of 2007 referred to yet another order passed by a learned Single Judge of this Court in W.P.No.33248 of 2004, dated 08th November 2005, which was also on similar facts. The learned Single Judge, therefore, allowed the writ petition filed by the respondent herein and passed an order permitting the second appellant to issue a fresh show-cause notice to the respondent without indicating his mind about the punishment to be inflicted upon him. Being aggrieved by this judgment and order, the present appeal has been filed by the appellants herein.
4. The learned Government Pleader appearing for the appellants points out that mere indication of the proposed punishment does not mean that the State is going to inflict that punishment. The reference to such punishment is fully permissible under Rule 17(c) of the Rules. The relevant Rule, viz., Rule 17(c)(i) (1) reads as follows:-
''17(c) Provision to be followed when a Government servant is convicted on a criminal charge:
(i) (1) The requirements of sub-rule (b) shall not apply where it is proposed to impose on a manner of a service any such penalty as is referred to clause (i) of that sub-rule on the basis of facts which have led to his conviction in a criminal court (whether or not he has been sentenced at once by such court to any punishment); but he shall be given a reasonable opportunity of making any representation that he may desire to make such representation if any, shall be taken into consideration before the order imposing the penalty is passed."
5. The learned counsel for the respondent, on the other hand, relied upon a judgment of this Court in the case of M.Devendran -vs- The Director, Tamil Nadu Fire and Rescue Services, Egmore, Tamil Nadu reported in (2006) 1 MLJ 40, wherein after referring to this very rule, a learned Single Judge has taken the view that such a communication indicates a pre-judged approach to the things and, therefore, he had interfered into that communication. The learned counsel appearing for the respondent submitted that the order passed by the second appellant is contrary to the view taken by different Judges of this Court and, therefore, the learned Single Judge was right in taking the view that he has taken.
6. As against this submission of the learned counsel for the respondent, the learned Government Pleader has drawn our attention to the judgment of the Apex Court in Union of India and others -vs- Sunil Kumar Sarkar reported in (2001) 3 SCC 414, particularly paragraph 8 thereof. In that matter, Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was the relevant rule. Similar submissions were canvassed before the Apex Court and after referring to the relevant rules, the Apex Court has in terms observed that the question of having a pre-determined mind does not arise in such cases. All that a disciplinary authority is expected to do under Rule 19 is to be satisfied that the officer concerned has been convicted of a criminal charge and has been given a show-cause notice and reply to such show-cause notice, if any, should be properly considered before making any order under this Rule. The Court has observed that it will have to bear in mind the gravity of the conviction suffered by the Government servant in the criminal proceedings before passing any order under Rule 19 to maintain the proportionality of punishment.
7. Having regard to the clear enunciation of law by the Apex Court, in our view, the order passed by the learned Single Judge cannot be sustained. The appeal is, therefore, allowed and the impugned order is quashed and set aside. However, there will be no order as to costs. Consequently, the connected miscellaneous petition is closed.
8. The consequence of this order is that the respondent will have the right of making a representation against the proposed punishment. The learned Government Pleader points out that the respondent was served with the show-cause notice, dated 24th April 2008 on 27th April 2008 and that the dismissal order had been passed on 12th May 2008. Now what is material to note is that the show-cause notice required the respondent to show cause within 15 days from the date of receipt of that notice. If the show-cause notice is dated 24th April 2008 and it is served on 27th April 2008, the day of service will have to be excluded and thereafter 15 days will have to be calculated, which will mean that the respondent had the right to make his representation on or before 12th May 2008, which he has been denied by passing the dismissal order on 12th May 2008. The respondent had moved the High Court in the meanwhile and obtained a stay on 13th May 2008. It is also material to note that this dismissal order had been served on the respondent only on 16th May 2008. This being the position, in our view, the consequence of the present order will have to follow, namely, that the dismissal order will not survive. The respondent will have the right of making a representation against the proposed notice as to why he should not be dismissed. He may make his representation within 15 days from today. The appellant State is expected to consider it and then pass appropriate orders.
js To
1. The Tahsidar, Panruti.
2. The Revenue Divisional Officer, Revenue Department, Cuddalore