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Judgment
K. Chandru, J.—The petitioner has come forward to challenge the charge memo, dated 21.7.2007 framed by the Tribunal for Disciplinary
Proceedings, Coimbatore.
The petitioner was working as a Sales Tax Collection Inspector attached to the Commercial Tax Office, Central Tiruppur. On 30.3.2005, the
Directorate of Vigilance and Anti Corruption Department made a sudden inspection and seized records including a sum of Rs. 6045/-. It transpires
that the statement of the petitioner was recorded by the DVAC. However, the case of the petitioner was referred to an enquiry by the Disciplinary
Tribunal. The Disciplinary Tribunal framed two charges. The first charge relating to the petitioner receiving Rs. 200/- each from several persons as
illegal gratification to renew their respective registration certificates while collecting renewal fees. The second charge was that he was in possession
of Rs. 6045/-, which has not been satisfactorily explained by him. The petitioner was also given a copy of the statement.
Subsequently, the tribunal issued summons in TDP Case No. 07 of 2007 asking the petitioner to appear for an enquiry on 24.8.2007. The
petitioner did not disclose as to whether he had attended the enquiry and as to what had transpired before the Tribunal. However, he has now
come forward to challenge the very charge memo on the ground that it is violative of Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal)
Rules.
The petitioner contended that the Tribunal for Disciplinary Proceedings has no power or authority to try the disciplinary case of the petitioner. It
can only try cases relating to the officers under State service involving corruption. Since the petitioner did not belong to State service, the Tribunal
has no jurisdiction. If his case is tried by the tribunal, his right of appeal will be affected. In normal circumstances, after enquiry is completed, the
Directorate of Vigilance and Anti corruption itself will forward a report to the Heads of Department or to the Government. It is only for the
Government to decide whether the cases should be tried by the Tribunal or by the department concerned. In the present case, there is no order of
the Government.
Mr. R. Shanmugam, learned Senior Counsel appearing for the petitioner contended that the rule for constituting the Tribunal for Disciplinary
proceedings was framed under Article 309 of the Constitution. The rule will apply to all officers under the control of the State Government other
than those referred to under Article 314 of the Constitution. He also referred to Rule 4(1) of the Tamil Nadu Civil Services (Disciplinary
Proceedings Tribunal) Rules, 1955, which as as follows:
4(1) The Government shall, subject to the provisions of Rule 5, refer the following cases to the Tribunal, namely:
(a) Cases relating to Officers of the State Services in respect of matters involving corruption on the part of such Officers; and
(b) All appeals or petitions to the Government against orders passed on charges of corruption and all disciplinary cases in which the Government
propose to revise original orders passed on such charges;
Provided that it shall not be necessary to consult the Tribunal-
(i) in any case in which the Tribunal has, at any previous stage, given advice in regard to the order to be passed and no fresh question has
thereafter arisen for determination; or
(ii) whether the Government propose to pass orders rejecting such appeal or petition.
(2) The Government may, subject to the provisions of Rule 5, also refer to the Tribunal any other case or class of cases which they consider should
be dealt with by the Tribunal and the Government, in exercising the power conferred by this sub-rule, shall have regard to the nature and gravity of
the charge, the grade or rank of the officer charged and the organisational strength of the department concerned in handling cases involving
interpretation of rules regulating conditions of service of Government servants.
Therefore, he contended that it is only in the cases relating to the officers of the State service, the Government can refer the matter. The
petitioner does not belong to State Service. However, Rule 5 reads as follows:
5.(a) In every case referred to in Clause (a) of Sub-rule (1) and Sub-rule (2) of Rule 4, on completion of investigation, the Directorate of Vigilance
and Anti-Corruption or any other Branch of the Police or other departmental authority concerned, shall forward to the Government all the records
of the case;
Provided that the Directorate of Vigilance and Anti-Corruption shall forward its records to the Government through the Vigilance Commissioner,
Chennai.
Explanation.-For the purpose of this clause investigation includes investigation made under the General Law or any special enactment.
(b)(i) Notwithstanding anything contained in Rule 4, the Government shall after consulting the head of the department concerned, if necessary,
decide whether the case shall be tried in a Court of law or by the Tribunal or by the departmental authority concerned.
A combined reading of these two provisions will show that notwithstanding an embargo under Rule 4, under Rule 5(b), even a person who do
not belong to State service, the Government can refer the cases of persons other than State service. A perusal of Rule 10 reads as follows:
Notwithstanding anything contained in the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the following procedure shall be adopted
in regard to the passing of the final orders in cases enquired into by the Tribunal, namely:
(a) In cases other than those of the employees of the Municipal Corporations enquired into by the Tribunal, the Government shall be the authority
competent to impose a penalty in cases relating to-
(i) Officers of the State Service;
(ii) Officers of the Subordinate Service, whose cases are referred to the Tribunal along with cases relating to Officers of the State Service because
the caes are inter-connected or because officers are jointly involved;
(iii) Officers of the Subordinate Service who belong to different departments but are jointly involved, or whose cases are inter-connected; and
(iv) Officers of the Subordinate Service in whose cases, the Government on examination of the report of the Tribunal, decide to disagree with the
findings of the Tribunal.
On receipt of the findings of the Tribunal, if the whole or part of the charges are held proved, a copy of the report shall be communicated to the
delinquent officer for making further representation, if any, within a reasonable time, not exceeding one month. Any representation received in this
behalf within the period shall be taken into consideration before making any order imposing the penalty, provided that such representation shall be
based on the evidence adduced during the Tribunal enquiry only;
Provided that in every case where it is necessary to consult the Tamil Nadu Public Service Commission, the Government shall consult the
Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty;
Provided further that if it is a case submitted to the Government by the Head of the Department for passing final orders with reference to Clause
(b), and it is found that the Head of Department has taken some action, following the procedure as per rules only upto a certain stage, then it is
sufficient if the Government proceed with further action beyond the said stage.
(b) In cases relating to officers of the Subordinate Service enquired into, by the Tribunal, excepting those referred to in Sub-clauses (ii), (iii) and
(iv) of Clause (a), the report of the Tribunal, along with the records shall, on receipt by the Government, be transmitted to the Head of Department
concerned for passing final orders. If the Head of Department on consideration of such report proposes to impose any of the penalties referred to
in Rule 8 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the Head of the Department shall follow the entire procedure referred to
in Clause (a) wherever necessary;
Provided that if, for sufficient reasons, the Head of Department disagrees with the whole or any part of the findings of the Tribunal, he shall state his
reasons for such disagreement and shall submit the case to the Government for passing final orders. Thereupon, the procedure specified in Clause
(a) shall apply:
Provided further that the Government shall not send the report of the Tribunal relating to officers of the Subordinate Service to the Heads of
Department for disposal where Government alone are competent to impose any penalty on them.
Therefore, it cannot be said that the cases of subordinate services cannot be referred to the Tribunal. On the contrary, once reference is made
that the Tribunal can enquire and finally, submit its report only to the Government for an appropriate decision. In such a contingency, the decision
of the Tribunal is not final. It is for the Government to decide whether to accept the report or to reject the same or to disagree with the report. It
can take a final decision accordingly. Therefore, the petitioner cannot be said to be prejudiced by the reference of his case to the Tribunal. The
Government alone has a full say in the matter.
The Supreme Court in Nagaraj Shivarao Karjagi Vs. Syndicate Bank Head Office, Manipal and another, in paragraph 19 observed as follows:
...The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the
dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central
Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they
should impose on the delinquent officer. (See: De Smith''s Judicial Review of Administrative Action, 4th edn., p. 309). The impugned directive of
the Ministry of Finance, is therefore, wholly without jurisdiction, and plainly contrary to the statutory Regulations governing disciplinary matters.
The Supreme Court again in its judgment in 1997 (11) SCC 444 Satyendra Chander Jain vs. PNB held in paragraph 5 as follows:
Having regard to the decision in Nagaraj Shivarao Karjagi and the fact that the appellant has already attained the age of superannuation we are
of the view that the disciplinary authority should reconsider the matter regarding the penalty to be imposed on the appellant in the light of the
misconduct that has been found established against him. The disciplinary authority will take this decision on the basis that the recommendation
made by the Chief Vigilance Officer is not binding....
The Supreme Court in Ravi Malik v. National Film Development Corporation Ltd. reported in (2004) 13 SCC 427 in paragraphs 2 and 7
held as follows:
...The subject-matter of debate before us is the construction of Rule 23(b) which reads as follows:
(b) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or
misbehaviour against an employee, it may itself enquire into, or appoint any public servant, hereinafter called the inquiring authority to inquire the
truth thereof.
...
In this case the Central Vigilance Commission had issued instructions permitting retired officers to be appointed as inquiry officers. The words
public servant"" used in Rule 23(b) mean exactly what they say, namely, that the person appointed as an inquiry officer must be a servant of the
public and not a person who was a servant of the public. Therefore, a retired officer would not come within the definition of ""public servant"" for the
purpose of Rule 23(b). Rule 7 cannot be interpreted to mean that the direction issued by the Central Vigilance Commission would override any
interpretation which a court may put, as a matter of law, on it.
(Emphasis added)
Hence the contentions raised by the learned Senior Counsel must fail.
The other argument that he will lose his right of appeal also is without substance. The Supreme Court in Government of Government of A.P.
and Another Vs. N. Ramanaiah, has held that by delegation of powers to subordinate officers, the original authority, i.e. the Government will not
denude itself of its power to impose penalties. The argument that the right of appeal will be lost was also rejected by the Supreme Court. It was
held that in such cases, a review petition can be filed before the same authority.
In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.