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Judgment
M. Thanika Chalam, J.—The petitioners in all the three writ petitions have been ordered to be compulsorily retired from service by the first
respondent. Questioning the said orders, these petitions are filed to issue a writ of certiorarified mandamus or any other appropriate writ, directing
the respondents to reinstate the petitioners in service.
The facts which are necessary to dispose of these writ petitions are briefly as follows:
(a) The petitioner in W. P. No. 10588 of 1996 was working as a Junior Assistant, District Court, Coimbatore. Thiru Muthusamy, the petitioner in
W.P.No. 10589 of 1996 was working as a Process Server along with Thiru V. Sedhu, the petitioner in W.P.No. 17931 of 1996, who was also
working as a Process Server, District Court, Coimbatore. One Narayanansamy and Nallavarathan, were also working as Amins in the same
Court.
(b) One Indrani has filed a petition against Theanraj in R.C.O.P.No. 343 of 1994, for eviction u/s 10(2)(1) of the Tamil Nadu Buildings (Lease
and Rent Control) Act, alleging that he had committed wilful default in payment of rent and therefore, he should be evicted from the premises. That
case was taken on file by the Rent Controller of Coimbatore, and posted for the appearance of the respondent on November 22, 1984. Thiru
Nagarajan, when he was serving as Process Server at the relevant period, was entrusted with notice to be served upon the respondent in
R.C.O.P. No. 343/94 viz., Theanraj. It seems, Thiru Nagarajan instead of serving the notice in person to the said Theanraj, had forged the
signature of Theanraj, as if the notice was served on Theanraj, which was verified by the Central Nazir also. On November 22, 1984, since
Theanraj, who is said to have received the notice, had not appeared, and therefore, the Rent Controller set him ex pane. The evidence was
recorded on November 27, 1984, and an ex parte order of eviction came to be passed, on the same day. In pursuance of the ex parte order of
eviction, it seems the petitioner in R.C.O.P. has filed an Execution Petition, in which a notice was ordered and the same was entrusted to
Muthusamy, the then process server, for service. It seems the said Muthusamy, the petitioner in W.P. No. 10589 of 1996, without following the
rules and instructions for service of notices, made an endorsement, as if Theanraj had refused to accept the process, when it was attempted to be
served on him.
(c) In the same-execution proceedings, it seems a notice was entrusted for the service upon the respondent, in the said R.C.O.P., to Thiru V.
Sedhu, the petitioner in W.P.No. 17931 of 1996. The petitioner/ delinquent, instead of serving the notice properly, appears to have affixed on the
door of the house of Theanraj, as if he refused to accept the notice.
(d) Thereafter, when the warrant to take the possession of the property was issued, the same was entrusted to one Narayanansamy, who has also
failed to act as per the rules, and instead of executing the same properly, he appeared to have returned the same, as it the building was locked and
therefore, he could not execute the warrant. At the instance of the decree holder, thereafter, the warrant was entrusted to one Nallavarathan,
Amin, who had executed the same, on January 11, 1985 with the help of the police.
(e) The tenant of the premises in R.C.O.P.No. 343 of 1984, who had not been served with any notice in the above said proceedings, had
preferred a complaint, dated June 24, 1985 to the District Judge, Coimbatore, explaining how the notices were not served upon him, in all the
above said R.C.O.P. proceedings and how he was thrown out from the premises, without following the due process of law.
(f) On the basis of the complaint given by Theanraj that no notice was served upon him, at any point of time, enquiry was initiated, including
vigilance enquiry. The enquiry conducted by the Special Officer of the High Court, revealed the fact, that Nagarajan ''forged'' the signature of
Theanraj, in collusion with Indrani, the petitioner in R.C.O.P.No. 343 of 1984, in order to help the landlord to evict the tenant, which resulted in an
ex pane order of eviction. The enquiry also further revealed, that in the subsequent proceedings also, Theanraj was not served with the notices, and
he was kept in dark, regarding the proceedings initiated by the landlord against him, thereby depriving his right of tenancy, enabling the landlord to
throw the tenant unceremoniously from the demised property. Therefore, the High Court had directed the Principal District Judge, the second
respondent, to conduct an enquiry, as per the official memorandum, No. Roc. 7783/91-C3 dated May 4, 1993. In pursuance of the direction
given by the High Court, the second respondent initiated disciplinary proceedings, against the above said five delinquents, for the delinquency
committed by them.
(g) After elaborate enquiry, the second respondent as per the proceedings in Pr.No. 6/85 dated December 14, 1993, concluding that the charges
framed against the delinquents/petitioners were proved, passed an order demoting Thiru Nagarajan from the post of Junior Assistant to the post of
Bailiff for two years, making it clear that he was unfit for promotion within the above said period, with further observation, that he should not be
given any process to serve for two years. The second respondent has ordered, stoppage of increments for two years, for the proved delinquency
committed by Muthusamy and Sedhu, further concluding, that they should not be handed over with any notice for service for two years. Under the
same order bailiff Narayanasamy, had been demoted as Process Server, holding that he is unfit for promotion, for two years. In addition, he had
imposed a condition that he should not be given any process to serve for two years.
(h) All the petitioners including Narayanasamy preferred appeals, to the High Court, separately. The first respondent, while considering the
appeals, filed by the petitioners, came to the conclusion that the nature of the charges against the petitioners (delinquents) were proved. While
concluding so, considering the sanctity of the institution and the gravity of the offences committed by the delinquents, the first respondent felt, that
the punishment slapped upon the delinquents/ petitioners, were not sufficient and therefore, decided to enhance the penalty.
(i) Having decided so, the first respondent issued an official memorandum dated May 4, 1994, which reads:
Tvl. M. Nagarajan, formerly Junior Assistant now Amin, R. Muthusamy, V. Sethu, Process Servers, M. Narayanasamy, formerly Amin, now
process server, District Court, Coimbatore, have filed appeal petitions against the orders of the Principal District Judge, Coimbatore in Pr.No.
6/85, dated December 14, 1993.
In the facts and circumstances of the case, the nature of the charges are proved.
As such, notice is hereby issued to the above said appellants as to why the penalty should not be enhanced and why they should not be dismissed
from service. Further, they are directed to file their objections, if any, within 3 weeks from the date of receipt of this notice.
The Principal District Judge, Coimbatore, is hereby required to forward the objections of the above said individuals to the High Court, immediately
on receipt from them.
(j) On receipt of the above said official memorandum, the petitioners and Narayanasamy have submitted their explanations through the Principal
District Judge, Coimbatore (second respondent), not only questioning the finding of the second respondent, but also questioning the official
memorandum with a show cause notice ""why the penalty should not be enhanced and why they should not be dismissed from service"".
(k) In response to the show cause notices, in the answers, they have elaborately explained how the charges against them were not proved, and
how the materials available on record were insufficient, and not appreciated properly, resulting, a finding against the law and evidence against them.
(1) The first respondent upon considering the appeal petitions of Tvl. Nagarajan, Muthusamy, Sethu and Narayanasamy, came to the conclusion,
that the charges framed against them were proved, and it was not possible to hold that the findings were based on ""no evidence"". Thus deciding,
the first respondent concluded, that apart from the fact that there was no substance in the appeals preferred by the appellant, the objections filed to
the show cause notice issued for enhancing the penalty, did not contain any circumstance to dissuade the appellate authority from enhancing the
penalty.
(m) The first respondent had concluded, that the misconduct committed by the petitioners are very serious in nature, had caused great damage to
the image of the subordinate judiciary and therefore, unless the misconducts were viewed seriously and the officials committing such misconducts
were dealt with severe penalty, such instances were bound to continue to happen, causing irreparable damage to the judiciary as well as to the
justice seekers. While observing so, the first respondent had also dealt with the damage committed by the appellants, to the tenant in R.C.O.P.No.
343 of 1984. In this view of the matter, confirming the findings of the second respondent, dismissing the appeals preferred by the
petitioners/delinquents, enhanced the penalty, in exercise of the power under Rule 36(1)(iv)(b) of the Tamil Nadu Civil Services (Disciplinary and
Appeal) Rules, and imposed the penalty of compulsory retirement, from service, on each one of the applicants, with immediate effect as per the
order dated April 30, 1996 in R.O.C.No. 55/94/C1.
(n) The petitioners aggrieved by the enhancement of the penalty, as well as the dismissal of the appeals preferred by them, as aforementioned, have
filed these writ petitions, for calling the records relating to the order of the first respondent in Roc.No. 55/94/C1 dated April 30, 1996 and to
quash the same, consequently, to direct the respondents to reinstate the petitioners.
Heard the learned counsel for the petitioners and the learned Special Government Pleader, Mr. S.T.S. Murthy, for the respondents.
The learned counsel for the petitioners would contend, that the first respondent has not given sufficient opportunity to put forth the contentions of
the petitioners personally, before passing final orders, that too, when the first respondent has decided widening the scope of the punishment which
offended the principles of natural justice and therefore, the said order is vitiated. He argues further that the enhancement of punishment without
adverting to the objections raised to the original punishment imposed and even without considering the same, which in fact amounts to non-
speaking order, should not be allowed to stand, affecting the rights of the Government servants, imposing the maximum penalty of compulsory
retirement. He would further urge, that the first respondent erred in assuming that the evidence on record has been properly appreciated and it is
not a case of ""no evidence"" and therefore, it is not possible to hold that the findings against the petitioners are based on no evidence. It is the further
contention of the learned counsel for the petitioners, that the entire proceedings by the domestic Tribunal are void, because of the fact that the rent
control proceedings in R.C.O.P.No. 343 of 1984, have become final and conclusive, since it is not questioned by the so-called tenant, which has
not been properly considered by the respondents, while awarding punishment. He argues further that the first respondent has failed to note the
delay caused in holding the enquiry even which resulted in the death of the complainant, thereby denying the opportunity to the delinquents, to
contradict the allegations levelled against them. In this view of the matter, a strenuous argument was made for setting aside the punishment imposed
by the first respondent, in order to reinstate the petitioners to their post.
The learned Special Government Pleader appearing for the respondents would urge that no fresh opportunity need be given to the petitioners,
since the second respondent himself had followed the procedures contemplated u/s 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)
Rules, that before enhancing the punishment, opportunities were given to all the petitioners, by issuing show cause notices, for which they have
submitted their replies and that the first respondent considering all the relevant facts have come to an unerring conclusion in imposing a proper
punishment, considering the magnitude and gravity of the offence, which does not warrant any disturbance by allowing the writ petitions.
All the petitioners were ordered to be compulsorily retired, as per the impugned order dated April 30, 1996 made in Roc.No. 55/94/C1. This
punishment or penalty is contemplated under Rule 8(iv). Originally, only the reduction in rank and stoppage of increment were ordered by the
second respondent. Questioning the said penalty alone, the petitioners have preferred appeals to the first respondent, as contemplated under Rule
23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
Rule 23 mandates the appellate authority 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.
(d) confirming, enhancing, reducing or setting aside the penalty; or.........
If the appellate authority felt that the penalty imposed upon the delinquents are insufficient, to meet the ends of justice or of the grave nature,
warranting enhanced penalty, then the appellate authority shall after giving the appellants a reasonable opportunity of making representation against
the penalty proposed, on the basis of the evidence adduced during the enquiry, and after obtaining the representation, shall make such orders as it
may deem fit. Only under this provision viz., Rule 23(ii), the first respondent has enhanced the penalty probably read with Rule 36(1)(iv)(b) of the
Tamil Nadu Civil Services (Discipline and Appeal) Rules.
The learned counsel for the petitioners argues that the appellate authority has not considered the representations made by the petitioners in
proper perspective, whereas the appellate authority has predetermined the case and then issued show cause notices, which would show that there
was no application of mind, thereby violating the principles of natural justice. In support of the above contention, our attention was drawn to the
official memorandum dated May 4, 1994 issued by the first respondent referred supra, which reads:
In the facts and circumstances of the case, the nature of the charges are proved.
Thereby, as rightly contended by the learned counsel for the petitioners, establishing the fact, that the first respondent had already taken the
decision, as if the nature of the charges were proved, even when the appeals were not ''considered'' and decided, properly appreciating the
evidence on record by the appellate authority viz., the first respondent. As seen from this memorandum, he has come to a conclusion that the
nature of the charges are proved, thereby showing that he has ""not considered"" the matter properly and arrived a conclusion, which is not
contemplated, especially when the appellate authority has proposed to enhance the penalty. It is not the case of the first respondent, in the official
memorandum, that only in case of proof of charges, ""why penalty should not be enhanced and why they should not be dismissed from service or
compulsorily retired."" In this view of the matter, we are persuaded to accept the contention of the learned counsel for the petitioners, that the
appellate authority has not applied his mind properly, and has not ''considered'' the case of the petitioners, which ought to have been considered,
as mandated, u/s 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
The learned counsel for the petitioners would contend, that the procedure contemplated under Rule 23(1)(i) is not properly followed in this
case, while enhancing the penalty and therefore, it should be held that the order is violative of the procedure, offending the natural justice, thereby
causing prejudice to the petitioners. Rule 23(1)(i) says, if the appellate authority proposes to impose any one of the penalties specified in Clauses
(iv), (v), (vi), (vii) and (viii) of Rule 8 and an enquiry under Rule 17(b) has already not been followed, the appellate authority shall hold such
enquiry, or direct that enquiry shall be held and thereafter alone, on consideration, order should be passed.
The fallacy of the argument is evident from the reading of Rule 23(1)(ii) as well as the proceedings initiated in this case, by the second
respondent. If an enquiry had not been held, under Rule 17(b), in that case alone, enquiry is contemplated as stated in Rule 23(1)(i). In this case,
all the petitioners were enquired and enquiries were conducted, only in accordance with Rule 17(b) and therefore, it should be held, since the
enquiry under Rule 17(b) has already been held, there is no question of the appellate authority, conducting an enquiry by himself or directing any
other authority to conduct an enquiry under Rule 17(b), while deciding to enhance the penalty. Therefore, the appellate authority having come to
the conclusion, to enhance the penalty, an enquiry has not been conducted under Rule 23(1)(ii) will not vitiate the proceedings, in this case and
therefore, this argument deserves out right rejection.
11.The learned counsel for the petitioners urged very vehemently, that the appellate authority has failed to note that there is no evidence to prove,
that one of the petitioners by name, Nagarajan forged the signature of the tenant in the R.C.O.P. and this was not property considered by the
appellate authority. In the same way, he would further contend, that even for the charges against the other petitioners, no evidence, worthy of
credence, is available, which is not properly considered by the first respondent. This forum is not an appellate forum, where these points could be
raised and therefore, it is not necessary for us, to go into detail, about the evidence available on record or non-appreciation of the same. However,
if it is shown that the appellate authority has not considered the case from its proper perspective, then some prejudice is shown, which would have
offended the right earned by the petitioners, then interference by this Court, under Article 226 would be warranted and not otherwise. In this
context, we have to see the order of the first respondent.
In the final order dated April 30, 1996, the first respondent says:
Aggrieved by the aforesaid orders of penalty, the appellants have preferred the aforesaid appeals. When these appeals came up for consideration,
a notice was issued to each one of them to show cause as to why the penalty should not be enhanced and a penalty of dismissal from service
should not be imposed on each one of them in the event of acceptance of the findings of the disciplinary authority that the charges framed against
the appellants are established"".
Thereby indicating that only in the event of acceptance of findings of the disciplinary authority, it is proposed to enhance and inflict the penalty of
dismissal from service. But unfortunately, this is not the case in the official memorandum dated May 4, 1994, which we have extracted above.
There the high lighted words are conspicuously absent. From the perusal of the order also, it appears that the appellate authority has not
considered the evidence at all. The appellate authority viz., the first respondent concentrated only on the aspect - why a serious punishment or
penalty should not be imposed upon the petitioners/delinquents, instead of discussing the evidence and showing how the evidence clinchingly
proved the charges, warranting enhanced penalty, than the penalty inflicted by the second respondent. Therefore, we feel, as such the order passed
by the appellate authority could not be confirmed or sustained, and it may require reconsideration.
In State of Rajasthan v. M. C. Saxena 1998 I CLR 879 SC, the Apex Court has ruled that the order of penalty cannot be assailed on the
ground that before the disciplinary authority proceeds to award punishment, the delinquent Government servant should have been afforded a
further opportunity of hearing, which says:
It is well-settled that the disciplinary, authority can, disagree with the findings arrived at by the enquiring officer and act upon his own conclusion,
but the only requirement is that the said disciplinary authority must record reasons for his disagreement with the findings of the enquiry officer. If the
disciplinary authority gives reasons for disagreeing with the findings of enquiring officer then the Court cannot interfere with those findings unless it
comes to the conclusion that no reasonable man can come to the said finding.
The appellate authority, the 1st respondent herein has not given any reason under what circumstances, the representations given by the
petitioners are unacceptable, how the findings of the second respondent were unassailable based on evidence. In the order dated April 30, 1996,
in the name of appreciation, the first respondent has said:
On considering the evidence of P.Ws. 1 to 6 and D. Ws. 1 to 6 and also on perusing the documents produced in the case, the Disciplinary
Authority, has held that the charges are proved against all the four appellants.
Thus observing, it says that evidence on record has been properly appreciated, saying further this is not a case of ''no evidence''. The contentions
raised by the delinquents in their representations were not discussed, with reference to evidence, considered and answered and therefore, we feel
there is no proper ""consideration"" as rightly contended on behalf of the petitioners, and that is why, even before deciding the appeal, official
memorandum has been issued, as if charges are proved, which should not be the approach of the first respondent, while considering the fate of
their subordinates, as ruled by this Court in G. Srinivasan Vs. The Government of Tamil Nadu and Others, and the Apex Court in R.P. Bhatt Vs.
Union of India and Ors (UOI) ., .
In Srinivasan v. Government of Tamil Nadu (supra), a Division Bench of this Court has ruled what are the duties of the appellate authority
under Rule 23, which reads:
Rule 23(1) gives a mandate to the appellate authority to 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. Thus it is
clear from a perusal of Rule 23 that the appellate authority is enjoined to consider whether the facts on which the order of dismissal was passed
had been established and the facts established afford sufficient grounds for taking action and whether the penalty is excessive or adequate.
which are not properly considered in this case, as seen from the order.
The learned counsel for the petitioners submitted that the 1st respondent has failed to consider the appeals as per the dictate of the Apex Court
in R. B. Bhatt v. Union of India (supra), where the Apex Court has ruled:
The word ''consider'' in Rule 27(2) implies ''due application of mind''. It is clear upon the terms of Rule 27(2) that the appellate authority is
required to consider: (1) whether the procedure laid down in the Rules has been complied with and if not, whether such noncompliance has
resulted in violation of any provisions of the. Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted
by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders, confirming, enhancing etc. the penalty, or
may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant
factors set forth in Clauses (a), (b) and (c) thereof.
The argument of the learned counsel for the petitioners, Mr. S. Parthasarathy, that the ""right to be heard"" remains available to the employee up
to final stage that too in case where the disciplinary authority proposed to enhance the punishment of serious in nature, is well-recognised in
Yoginath D. Bagde Vs. State of Maharashtra and Another, , wherein it is ruled:
The delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges
levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary
Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry
Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of
hearing to the delinquent employee before reversing those findings. Formation of opinion should be tentative and not final. It is at this stage that the
delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority
proposes to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2).
In our case, the first respondent without hearing the appeal and having decided to enhance the penalty, not even tentatively, issued official
memorandum, which is not only improper, but also against the well-settled principles of natural justice. The right of hearing being a constitutional
right of the employee, ordinarily cannot be taken away, denying the opportunity.
There is no indication in the impugned order that the petitioners were given sufficient opportunity of hearing, in person or through the advocate,
despite the fact, that they have given their representations for the official memorandum. It is also ruled in the above said ruling that:
Disciplinary Authority before forming its final opinion, has to convey to the charged employee its tentative reasons for disagreeing with the findings
of the Enquiry Officer. Show cause notice issued in the present case to appellant with regard to proposed punishment, held, did not meet the
requirement of the law because final decision to disagree with the Enquiry Officer had already been taken before issuing show-cause notice"".
Here also more or less, final decision has been taken to enhance the penalty, without considering the appeals. As ruled in the above case, we feel
that the appellate authority has failed, in its duty to consider the case properly, meeting the requirements of law and in this view, the impugned
order should be held violative of constitutional right. We are of the firm view, from the reading of the impugned order, that the first respondent has
not followed the above guideline, while deciding the appeals of the petitioners, thereby violated their rights guaranteed.
In our considered opinion, the first respondent has not considered the appeals of the petitioners, as per the established principle of law, by
considering the evidence, representations and no considered or detailed order was passed before taking the decision, whereas the first respondent
preconceived, as if charges were proved thereby showing absence of application of mind, violating the natural justice. In this view of the matter, we
are constrained to interfere with the findings of the first respondent, as such unacceptable to us and the matter requires reconsideration, considering
the gravity of the offence reported against the petitioners. We would allow the petitions and set aside the order passed by the first respondent in
Roc.No. 55/94/C1 dated April 30, 1996 remitting the matter to the first respondent for reconsideration.
In result, the writ petitions are allowed and the order of the first respondent made in Roc.No. 55/94/C1 dated April 30, 1996 is set aside and
the matter is remitted back to the first respondent for reconsideration as per law, in the light of the observation. No order as to costs.
The petitioners, who have not attained the age of superannuation, are not entitled to be reinstated, forthwith, and they are directed to await for
the final disposal of their appeals, which exercise shall be completed within three months from the date of receipt of this order, by the 1st
respondent.
Petition allowed.