Heard the learned counsel for the petitioner and the learned Additional Government Pleader appearing for the respondents.
2. The petitioner had been initially selected for admission to the post of Junior Assistant, by direct recruitment, on merits. He had joined service, on 18.2.1988. Later, he was promoted to the post of Assistant, on 21.8.1991, and he has been serving in the said post. While so, charge memos, dated 6.9.1999 and 18.9.1999, had been issued to the petitioner, under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. However, before the petitioner could submit his explanation for the charges, after recovering from his serious illness, the second respondent had converted the charges into Rule 17(b) charges, without having proper reasons to do so. Since the documents required by the petitioner had not been supplied to him, he could not submit his explanation. Further, the charges levelled against the petitioner were vague in nature.
3. An enquiry had been conducted, without following the Rules and the Government Order, in G.O.Ms.No.405 (P&AR) Per.N., dated 1.4.1991, and it was held that the charges were proved. The detailed explanation submitted by the petitioner had not been considered before the order, dated 29.4.2000, had been passed by the second respondent, imposing the punishment of reduction of the petitioner's pay, for two years, without cumulative effect.
4. The petitioner had preferred an appeal to the first respondent, belatedly, on 28.6.2000. Since the appeal had been filed by the petitioner, belatedly, the first respondent could have either rejected the appeal, showing delay as a reason or he could have condoned the delay and heard the appeal, on merits. Without choosing either one of the two modes available to him, the first respondent had issued a charge memo, dated 27.11.2000, for enhancement of the punishment stating that the punishment of reduction of pay, imposed on the petitioner, was insufficient.
5. The first respondent, appellate authority, has no jurisdiction to issue a show cause notice for enhancing the punishment meted out to the petitioner. No justifiable reasons have been shown by the first respondent for issuing the charge memo to the petitioner for enhancing the punishment, which had been already given. In such circumstances, the petitioner has preferred the present writ petition before this Court, under
Article 226 of the Constitution of India.
6. In the reply affidavit filed by the second respondent, the averments made on behalf of the petitioner had been denied. It has been stated that the charges framed against the petitioner were specific in nature and they were in accordance with the Rules laid down in the Tamil Nadu Prison Manual, Volume II and the Tamil Nadu Government Servants Conduct Rules. The petitioner had failed to appear before the Medical Board in spite of the specific instructions given to him to show that he was ill. Further, the petitioner had failed to submit his explanation to the charges levelled against him. The records required by the petitioner were in no way connected with the charges framed against the individual. After the transfer order had been issued the petitioner had failed to hand over the charges to his successor, in spite of specific instructions to do so. As per the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the appellate authority has a right to enhance the punishment after issuing the necessary show cause notice to the individual concerned. Since the petitioner had not preferred the appeal, within the time limit prescribed for the filing of such appeal, the appellate authority had only issued the show cause notice, without passing any order on the merits of the appeal.
7. The learned counsel for the petitioner had submitted that the first respondent had chosen to enhance the punishment given to the petitioner stating that the petitioner had been arrogant in not filing the appeal, within the time limit prescribed. Such a reason cannot be held to be valid, especially, in view of the fact that the petitioner had been seriously ill and only due to such illness, he was unable to submit his appeal, within the prescribed time limit. The first respondent could have dismissed the appeal, as being belated or he could have chosen to pass an order, on merits. Instead, he had issued the show cause notice to the petitioner, as to why the punishment proposed to be given to the petitioner should not be enhanced. Such a course of action is arbitrary, perverse and unsustainable in the eye of law.
8. The learned counsel appearing on behalf of the respondents has not been in a position to substantiate the contentions contained in the reply affidavit filed on behalf of the respondents. Nothing has been shown on behalf of the respondents to validate the action of the first respondent, seeking to enhance the punishment to be meted out to the petitioner, in view of the charges levelled against him. In such circumstances, the impugned show cause notice of the first respondent, dated 27.11.2000, is set aside. Further, since the petitioner has not shown sufficient cause or reason for this Court to interfere with the impugned proceedings of the second respondent, dated 29.4.2000, the said proceedings, imposing the punishment of reduction of pay awarded to the petitioner, is sustained.
9. At this stage of the hearing of the writ petition, the learned counsel appearing for the petitioner had submitted that certain amounts due to the petitioner, as salary, increments and other emoluments, have not been paid in view of the pendency of the writ petition. In view of the fact that the final orders are being passed in the writ petition, the respondents are directed to pay the amounts due to the petitioner, if any, within a period of twelve weeks from the date of receipt of a copy of this order.
The writ petition is ordered accordingly. No costs.
Index:Yes/No 23-06-2009 Internet:Yes/No csh To
1.The Deputy Inspector General of Police, Prison Department, Kovai Range, Kovai-18.
2.The Superintendent, Kovai Central Prison, Kovai-18.
M.JAICHANDREN,J.
csh Writ Petition No.48416 of 2006 23-06-2009