T.C. Kannan vs The Government of Tamil Nadu

M.N. Chandurkar, C.J.—Consequent upon a charge memo being given to the appellant in the matter of using intemperate language and

making false and frivolous allegations against the staff in Chengalpattu Collectorate and the Public Prosecutor, after considering the explanation

given by the appellant, the Government made an Order of punishment which read as follows:

Accordingly the Government hereby consider and direct that the increment of Thiru T.C. Kannan Assistant Public Prosecutor II (Metropolitan) be

stopped for a period of two years with cumulative effect. The period of stoppage of increment should be reckoned inclusive of intervals spent on

leave as per Ruling 2(e) under Fundamental Rule 24. The effect of this stoppage of increment on the pension has been considered and it is intended

to have that effect.

The Order was made on 29th April, 1980.

However, prior to the date of this Order an amendment was introduced by way of a proviso to Rule 17(a) of the Tamil Nadu Civil Services

(Classification, Control and Appeal) Rules (hereinafter referred to as Rules). That proviso which came into force with effect from 1st April, 1980

reads as follows:

Provided further that, in every case where it is proposed, after considering, the representations, if any made by the Government servant, to

withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government

servant or to withhold increments of pay without cumulative effect for the period exceeding 2 years or to withhold increment of pay with cumulative

effect for any period, the procedure laid down in Sub-rule (b) shall be followed before making any Order imposing on the Government servant any

such penalty.

The appellant challenged the Order of penalty in this Court by filing a writ petition. Among other grounds one of the grounds raised was that in

view of the Proviso to Rule 17(a) of the Rules, the. Government was obliged to follow the procedure laid down in Sub-rule (b) of Rule 17 before

passing any Order imposing penalty on the Government servant in the form of withholding of increments with cumulative effect which is likely to

affect adversely the amount of pension payable to the Government servant as has been done in the instant case. Rule 17(b) as is well known

provides for an oral enquiry if desired by the delinquent.

The learned Judge, however, dismissed the writ petition. Undoubtedly, he found that the charges had been proved, but with regard to the

contention based on the Proviso to Rule 17(a) the learned Judge took the view that the amendment in Rule 17(a) cannot have retrospective effect

and the charge memo having been given on 7th March, 1978 and an explanation having been submitted on 19th September, 1979 that is, before

the date of the amendment to Rule 17(a) was made, the amendment did not apply in the case of the appellant. The learned Judge having dismissed

the writ petition, the appellant has filed this appeal.

This appeal can be disposed of without going into the merits of the charges framed against the appellant. A reading of the proviso will show that

compliance with that proviso is necessary, if after considering the representation of the delinquent the Government proposes to withhold increments

and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant, before the Government

makes an order imploding on the Government servant the penalty as aforesaid. The proviso itself contemplates that if any of the penalties specified

in that proviso is to be awarded, the procedure laid down, in Sub-rule (a) of Rule 17 should be followed. The proviso deals with a procedural

matter. If on the date on which the penalty has been imposed this proviso has already come into force, then the Government was bound in law to

comply with the requirements of that proviso, namely, that if any one of the punishments referred to in that proviso was to be awarded that had to

be done only after the procedure laid down in Sub-rule (b) of Rule 17 was followed. The necessary consequence of this proviso is that where the

Government proposes to award any of the penalties specified in the proviso, it cannot do so unless the enquiry proceedings are conducted in

accordance with the procedure prescribed in Rule 17(a). This does not mean that the proviso is being given effect to retrospectively. Undoubtedly,

the proceedings commenced before the date on which this proviso had come into force. The proviso which is operative on the date on which the

penalty is awarded itself prescribes a procedure to be followed in a case covered by the proviso. In the instant case, the Order of penalty is dated

29th April, 1980. On that date, the Government could not inflict any of the penalties specified in the proviso without complying with the

requirements of the proviso and consequently with the requirements of the procedure laid down in Sub-rule (b) of Rule 17 of the Rules.

The State Government has also taken the same view with regard to the effect of the proviso as is clear from a note No. 42960/32-1, dated 7th

March, 1982, which is issued by the personal and administrative Reforms (Per M) Department and is addressed to all the Secretaries to the

Government of Tamil Nadu. The note is in the form of instructions issued in the matter of procedure to be followed before imposing punishment of

stoppage of increment with or without cumulative effect under Rule 17(b). It appears that a, doubt had been raised whether the procedure

prescribed by Rule 17(b) is required to be followed even in respect of proceedings instituted before 1st April, 1980. Paragraph 2 of this note

reads as follows:

A doubt has since been raised whether the disciplinary authorities have to follow either the procedure under Rule 17(a) or 17(b) for inflicting the

punishment of stoppage of increment with or without cumulative effect on the delinquent officer where the disciplinary proceedings were instituted

before 1st April, 1980 in view of the Orders issued in G.O. first cited.

The decision of the Government with regard to the construction which the Government has placed on the proviso to Rule 17(a) is contained in

paragraph 3 of the note which reads as follows:

The Government have considered the matter in detail and decided that though disciplinary proceedings were instituted under Rule 17(a) of the

Tamil Nadu Civil Services (Classification, Control and Appeal) Rules earlier to the issue of Orders in G.O.Ms. No. 257 Personal and

Administrative Reforms (Per R) Department dated 1st April, 1980 and final Orders are issued on or after 1st April, 1980 the procedure laid down

in Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules may be followed to avoid procedural irregularity as

pointed out by the Tamil Nadu Public Service Commission in para 1 above. All the Secretaries to Government may, therefore, be requested to

bring the above instructions to the notice of all the disciplinary authorities under their administrative control and. issue necessary instructions to

follow the above procedure scrupulously.

The State Government itself, therefore, has taken a view that though the disciplinary proceedings were instituted, under Rule 17(a) before 1st

April, 1980, the date, on which the proviso was brought into force but final Orders are issued on or after 1st April, 1980, the procedure laid down

in Rule 17(a) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules may be followed to avoid a procedural irregularity as

pointed out by the Tamil Nadu Public Service Commission. This, in our view, is the correct construction which should be placed on the proviso

which came into force on 1st April, 1980. In view of the patent infirmity in the disciplinary proceedings we need not go into the merits of the

findings and the only alternative is to quash the Order made on 29th April, 1980. If the State Government is so advised it is at liberty to take fresh

proceedings against the delinquent after following the prescribed procedure under law.

The appeal is accordingly allowed with costs. The State Government to pay Rs. 500 as costs to the appellant.