Janakiraman vs Government Of Tamil Nadu Rural ... on
13 November, 1989
Equivalent citations: (1990) 1 MLJ 216
Author: Bakthavatsalam
ORDER
Bakthavatsalam
J.
1. The
petitioner challenges the order of the Government passed in G.O.Rt. No. 1191,
Rural Development and Local Administration Department dated 10.8.1983 passing
an order of reduction permanently in rank from the post of Bill Collector to
chain man.
2. The
petitioner is a direct recruit to the post of Bill Collector and he was working
from 1.4.1965. The petitioner was kept under suspension by order dated
4.9.1972. An explanation was called for from him and he was reinstated in
service on 8.1.1973 as Bill Collector. Another charge memo was issued on him on
19.6.1973 and an explanation was called for from him, which was given by him on
28.6.1973. An order of permanent reversion was passed on 1.9.1973 reverting the
petitioner as chain man. The petitioner preferred an appeal to the Director of
Municipal Administration on 14.7.1976 which was rejected in 1977. The
petitioner filed a revision before the 1st respondent Government on 24.7.1979.
Again, the petitioner was asked to submit his explanation and he also submitted
the same. By order dated 25.6.1981, the petitioner was reinstated to the post
of Bill Collector. It is to be seen that the charges against the petitioner
were that he has misappropriated a sum of Rs. 115.05 p. It has also to be
stated that the petitioner was issued a notice by the first respondent, after
considering Fundamental Rule 29 (2) and he was reinstated in service by order
of the first respondent in G.O.Ms. No. 1937, dated 16.12.1980 on the ground
that the period of reversion has not been specified in this case which amounts
to reversion as a permanent measure and which is not in order as contrary to
Fundamental Rule 29 (2). By the same order, the first respondent Government
requested the Commissioner of Pallavapuram Municipality to send all the connected
records for further examination by the Government. After a thorough examination
of the case, the Government issued a show cause notice to the petitioner on
25.6.1981 as to why the penalty of dismissal from municipal service should not
be imposed on him for the charges held proved in the disciplinary enquiry.
Since the petitioner did not deny the charges in his reply to the show cause
notice, the first respondent passed an order reverting the petitioner as basis
servant.
3. The
petitioner alleges in the affidavit that under the Fundamental Rules as well as
under the Municipal Manual dealing with the appointments and punishments of the
officers and servants of the Municipal Councils, under Chapter 17 (4) no one
can be dismissed or removed without being informed in writing of the grounds on
which it is proposed to take action and has been afforded an adequate
opportunity of defending himself. It is also stated in the affidavit that under
Fundamental Rule 29-A that once the order of reduction is set aside, the person
concerned has to be given the difference in the pay which he would have been
(SIC) to. It is further stated that for the first time when charges were framed
against the petitioner, after considering his explanation the second respondent
dropped further action. When the same charges were framed for the second time,
there was no charge of misappropriation much less the misappropriation of Rs.
115.05 p. and the first respondent incorrectly refers to in his order dated
10.8.1983 as if misappropriation charges were framed against the petitioner
both the times and held to be proved. The petitioner further alleges than on
both occasions, no opportunity of personal hearing was provided and no enquiry
was conducted.
4. A
counter-affidavit has been filed on behalf of the first respondent. The facts
narrated in the counter would show that a final order was passed by the Special
Officer, on 1.9.1973 reverting the petitioner permanently as chairman. It is
also stated in the counter that the petitioner preferred an appeal to the
Government and that the Government by Order dated 16.12.1980 set aside the
orders issued by the Special Officer, Pallavapuram Municipality and the reasons
for setting aside the order of the Special Officer were that the petitioner was
directly recruited to the post of Bill Collector and that he cannot be reverted
to a lower post of the cadre of Chairman in which he had not acted previously
and that the period of reversion has not been specified resulting in reversion
as a permanent measure. It is further stated in the counter-affidavit that the
charges framed against the petitioner were held proved and that the petitioner
was heard in person and his statement was recorded on 8.12.1982. It is also
stated in the counter-affidavit that the petitioner has accepted all the
charges and requested to drop all further actions condoning his conduct. It is
also stated in the counter affidavit that the petitioner did not desire for any
cross examination. Similarly when the charges were framed against the
petitioner by the Special Officer in 1973 a questionnaire was sent along with
the charge memo and the petitioner was asked to state, if he wanted to be heard
in person. Accepting all the charges the petitioner returned the enclosed
questionnaire without mentioning as to whether he wanted to be heard in person
or not. Therefore, the contention of the petitioner that the opportunity of
personal hearing was not provided to him is not correct. It is also stated in
the counter affidavit that before the passing of the orders, a show cause
notice was issued to the petitioner. In paragraph 7 of the counter, a reference
to Rule 25 of Tamil Nadu Municipal Services Rules, 1970 has wrongly been made,
instead of 'Tamil Nadu Municipal Service Rules, 1975' and this has been signed
by the Deputy Secretary to Government (Establishment) and attested by, one
under Secretary to Government (Establishment). It is also stated in the counter
affidavit that the Government exercised their power under Rule 25 correctly and
that the Government has not disturbed the findings of the disciplinary
authority at any point of time. It is stated that the Government interfered
only with the nature of punishment initially but later after giving opportunity
to the petitioner imposed the penalty on him on the basis of the charges held
proved.
5. The
counter filed by the second respondent also narrates the events. According to
the Second respondent the petitioner was in the habit of applying for leave
frequently causing much inconvenierice to the collection work entrusted with
him. Charges were framed against the petitioner on 19.6.1973 and the petitioner
submitted his explanation on 28.6.1973, wherein he did not deny the charges. It
is stated in the counter affidavit that the petitioner had collected a sum of
Rs. 115.11 P. on 7.3.1972 from one Thiru. R. Balasubramanian and had remitted
the amount on 9.8.1973. Since the petitioner had not denied the charges framed
against him, final orders were passed reverting him permanently as Chairman and
from 1.9.1973. The Government by G.O.Ms. No. 1937/ RE & LA/dated 16.12.1980
has set aside the order dated 1.9.1973 passed by the Special Officer, Pallavapuram Municipality
6. Mr.
S. Venkataraman, learned counsel for the petitioner contends that the above
rules relate to Rule 41 of the Manual of Municipal Service Rules which reads as
follows:
The
provisions of Fundamental Rules, Tamil NaduLeave Rules, 1933, Tamil Nadu Manual
of special Pay and Allowances, Tamil Nadu Pension Code, as amended from time to
time as applicable to Government Servants, shall apply in so far as they are
not inconsistent with the rules made under the District Municipalities Acts
1920 (Tamil Nadu Act V of 1920), Rule 29 of the Fundamental Rules reads as
follows:
If a
Government Servant is reduced as a measure of penalty to a lower service, grade
or post or to a lower stage in his time scale the authority ordering such
reduction shall state the period for which it shall be effective and whether on
restoration the period of reduction shall operate to postpone future increments
and if so, to what extent.
In the
rulings under the Rule, it is stated as follows:
(i)
The date from which it will take effect and the period (in terms of years and
months) for which the penalty shall be operative. It should be noted that the
reduction to a lower service, grade or post or to a lower service, grade or
post or to a lower stage in his time scale is also not permissible under the
rules either for an unspecified period or as a permanent measure. It should
only be for a specified period. Learned counsel for the petitioner further
submits that the order reverting the petitioner as Chairman permanently is not
in accordance with the Manual of Municipal Service Rules. Learned counsel did
not advance any arguments on merits. Per contra, learned Government Advocate
submits that the Government has got power under Rule 25 of the Tamil Nadu
Municipal Services (Discipline and Appeal) Rules, 1970.
7. I
considered the arguments of both counsel and the concerned rules referred to
above in extense. Rule 41 of the Manual of Municipal Service Rules and Rule 29
and Sub-rule (i) of Rule 29 of the Fundamental Rules, in my view support the
argument of the learned counsel for the petitioner. I have already extracted
the relevant rules and they speak for themselves. But the rule 25 of the Tamil
Nadu Municipal Services (Discipline and Appeal) Rules, 1970 which was referred
to by the learned Government Advocate has nothing to do with the contentions
raised by the petitioner. It refers to the power of the Government to call for
the records relating to the disciplinary proceedings taken and pass such orders
on them as they deem fit and necessary. In view of this Rule, a notice has to
be given to the person concerned and an opportunity has also to be given to the
person concerned about the reasonings of the punishment. As I have already
stated the counter refers to wrongly as Rule 25 of the Tamil Nadu Municipal
Services Rules, 1970 whereas it should be mentioned as Rule 25 of the Tamil
Nadu Municipal Services (Discipline and Appeal) Rules, 1970.
It is
only a revisional power of the Government and it cannot override the
Fundamental Rule. Tamil Nadu Municipal Services (Discipline and Appeal) Rules,
1970 is concerned with the penalties and sub rules 3 and 4 to Section 34-3 deal
with the reduction to a lower rank in the seniority list or to a lower post or
time scale or to a lower stage in a time scale. Apart from that I do not find
any power to the Government to order a reduction in rank permanently which will
be against Rule 29 of the Fundamental Rules and Rule 41 of the Manual of
Municipal Services Rules and the Rulings in the Tamil Nadu Municipal Services (Discipline
and Appeal) Rules, 1970. The power under Rule 25 of the Rule referred to above
cannot be disputed. But how far the power has been exercised is the question
here. That power has been exercised wrongly in my view without considering the
scope of Rule 29 of the Fundamental Rules and Rule 41 of the Manual of
Municipal Service Rules and the Rulings of the Tamil Nadu Municipal Services
(Discipline and Appeal), Rules, 1970. Since the impugned order has been passed
in violation of the above said rules, I set aside the impugned order and
accordingly the impugned order is set aside.
8. In
the result, this writ petition stand allowed. But there will be no order as to
costs.
9.
Having regard to the counter affidavit filed by the first respondent, I would
like to add the following observations.
In
paragraph 7 of the counter affidavit, a reference has been made to Rule 25 of
the Tamil Nadu Municipal Services Rules, 1970 wrongly. I have to take it as
Rule 25 of the Tamil Nadu Municipal Services (Discipline and Appeal) Rules,
1970. It is a glaring mistake which has been made by a Deputy Secretary to
Government (Establishment) and the same has been attested by the Under
Secretary to Government. The Officers concerned have not taken care to find out
whether the correct provisions of law have been referred to in the counter. It
is disheartening to note nowadays that matters are not verified by the Officers
correctly who are expected to verify the provisions of law correctly and sign
them after careful scrutiny. I do hope that atleast in future the officers
concerned will take care of the facts contained in the papers before they sign
them and file before this Court.
No comments:
Post a Comment