Rule 36(1)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules

P.Janaki vs The State Of Tamil Nadu on 2 July, 2008

DATE: 02-07-2008
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
Writ Petition No.17715 of 2006
(O.A.No.6263 of 1995)
P.Janaki .. Petitioner.
Versus
1.The State of Tamil Nadu
rep. By the Secretary to Govt.,
Revenue Department,
Fort St.George, Madras-9.
2.The Principal Commissioner and
Commissioner of Revenue Administration,
Chepauk, Madras-5.
3.The Collector,
Collector's Office, Coimbatore.
4.The Personal Assistant to
the Collector,
Collector's Office, Coimbatore. .. Respondents.
Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, to call for the records on the file of the first respondent in connection with the show cause notice issued by him in his proceedings in Letter No.96548/K1/90-7, dated 21.9.95 and quash the same and direct the respondents to regularise her leave period 6.8.87 and 31.3.89 and from 1.4.89 to 9.4.89. For Petitioner : Mr.R.Singaravelan
For Respondents : Mr.T.Seenivasan
Additional Government Pleader
O R D E R
Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.
2. The petitioner has stated that she was selected for appointment to the post of Typist, through the Tamil Nadu Public Service Commission, on merits, and she had joined in service on 31.8.1974. After qualifying herself for the appointment to the post of Steno Typist, she was appointed to the said post on 11.1.1982, after getting the concurrence from the Government. The petitioner has further stated that while she was working as a Steno Typist in the Revenue Divisional Office, Coimbatore, she had applied for medical leave, for a period of two months from 6.8.1987, due to her ill-health. Due to the deterioration of her health, she had applied for unearned leave on loss of pay. When she was on leave, the Government had passed an order in G.O.Ms.No.1046, Personnel and Administrative Reforms (F.R.III) Department, dated 13.11.1987, stating that a Government servant who had completed five years of service cannot be absent or go on leave for a period of one year, continuously. If the Government servant is absent or goes on leave beyond the said period the said Government servant can be removed from service. Since the petitioner was on leave, she was not aware of the said Government Order. However, she was intimated about the Government Order and she was asked to join duty, immediately, by a memo, dated 11.10.1988, issued by the Personal Assistant to the Collector, Coimbatore. The said memo had been received by the petitioner, on 29.10.1988. Immediately thereafter, the petitioner had applied for being posted, vide her letter, dated 31.10.1988. On the basis of her letter, dated 31.10.1988, she was given the posting by an order, dated 1.12.1988, passed by the Personal Assistant to the Collector, Coimbatore.
3. The petitioner has further stated that due to certain family circumstances, she could not join duty, immediately. Hence, she had requested for three months time, upto 31.3.1989, for joining duty. Her request was acceded to by a letter, dated 19.1.1989. At the end of her leave, she had requested for the posting by her letter, dated 27.3.1989. Accordingly, the petitioner was given the posting by an order, dated 8.4.1989, passed by Personal Assistant to the Collector, Coimbatore. After joining duty, the petitioner has been continuing in service without any blemish. Thereafter, she had given a written representation, dated 23.8.1989, to the third respondent, for regularisation of her leave period, from 6.8.1987 to 31.3.1989 and from 1.4.1989 to 9.4.1989. At that time, the petitioner was served with the charge memo, dated 15.11.1991, levelling two charges stating that she was on leave on loss of pay for more than a year and thereby, she had violated the conditions stipulated in G.O.Ms.No.1046, Personnel and Administrative Reforms (F.R.III) Department, dated 13.11.1987, and that she had acted according to her own wish, without joining duty before the end of the one year period specified in the Order. The petitioner had submitted a detailed explanation, dated 25.11.1991, denying the charges. However, without accepting her explanation, the petitioner was asked to appear for an enquiry, on 20.1.1992, before the District Supply Officer, Coimbatore. Accordingly, the petitioner had appeared for an enquiry. No witness was examined and no document was marked. Though the Enquiry Officer had given a finding that the charges can be viewed, sympathetically, in view of the peculiar circumstances of the case and for the reason that the petitioner had no chance to take note of the Government Order, while she was on leave. On the completion of the enquiry the petitioner was asked to submit her explanation to the Enquiry Officer's report, vide memo, dated 25.8.1992. Accordingly, the petitioner had submitted her explanation, dated 3.9.1992. The final order, dated 8.9.92, was passed by the fourth respondent imposing the minor punishment of censure. The petitioner had not preferred any appeal against the said order and thus, it had become final. While so, all of a sudden, a show cause notice, dated 21.9.1995, was issued against the petitioner, after a lapse of three years from the date of the order imposing the punishment on her, asking her to show cause as to why she should not be removed from service. The said show cause notice was the result of a suo motu action initiated by the third respondent. As the third respondent had issued the show cause notice after three years from the date of the order, imposing the punishment of censure on the petitioner, it is time barred. Further, the third respondent has no jurisdiction to issue the show cause notice. No special reasons have been stated in the show cause notice for initiating the suo motu action. In such circumstances, the petitioner has preferred the Original Application in O.A.No.6263 of 1995, which has been transferred to this Court and re-numbered as W.P.No.17715 of 2006.
4. In the reply affidavit filed on behalf of the respondents, the allegations made by the petitioner have been denied. It has been stated that the petitioner who was working as a Steno Typist, on deputation, in the office of the Commissioner of Payments for Somasundaram Super Spinning Mills at Coimbatore, had gone on leave from 6.8.1987 and she had remained on leave up to 9.4.1989. When the petitioner was on leave, the Government had issued G.O.Ms.No.1046, Personnel and Administrative Reforms (F.R.III) Department, dated 13.11.1987, ordering that no Government servant, who has completed five years of service should be granted leave for a continuous period exceeding one year, except on a Medical Certificate or Study Leave and that, when a Government servant does not assume duty after remaining on leave or absent for a continuous period of one year, he or she may be removed from service following the procedures laid down in the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Rule 18 of the Fundamental Rules of the Tamil Nadu Government has also been amended to the above effect and the amended Rule came into force from 13.11.1987. Accordingly, disciplinary action was initiated against the petitioner and a punishment of censure was imposed on her by the proceedings No.99100/91/A5, dated 8.9.1992, issued by the Personal Assistant (General) to Collector, Coimbatore. When a proposal was sent to the first respondent for regularisation of the period of absence of the petitioner, from 6.8.1987 to 9.4.1989, which had exceeded the period of one year permissible, under Rule 18 of the Fundamental Rules of the Tamil Nadu Government, the first respondent took suo motu action and issued the show cause notice.
5. Since the disciplinary action had already been instituted and a punishment of censure was imposed on the petitioner, the first respondent had observed that the punishment of censure imposed on the petitioner by the Personal Assistant (General) to Collector, Coimbatore, is not commensurate with the gravity of the charges held proved. Therefore, under Rule 36(1)(i) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, the first respondent had taken up a suo motu revision of the order passed by the Personal Assistant (General) to Collector, Coimbatore, dated 8.9.1992 and had decided to enhance the punishment into that of removal from service for the proved charges of unauthorised absence from services for more than one year. Accordingly, the first respondent had issued a show cause notice in Letter No.96548/K1/90-7, Revenue Department, dated 21.9.1995, to the petitioner, as provided under Rule 36(1)(i) of the Tamil Civil Services (Discipline and Appeal) Rules and the petitioner was directed to show cause as to why she should not be imposed with the enhanced punishment of removal from service for the proved charges. The show cause notice was served on the petitioner, on 4.10.1995.
6. It has been further stated that Rule 18(3) of the Fundamental Rules specifically provides for the imposition of the punishment of removal from service. According to the said rule, no other punishment could be imposed on the individual who contravenes the provisions of sub rule (2) of Rule 18 of the Fundamental Rules of the Tamil Nadu Government. Hence, the proposed punishment was also indicated in the show cause notice issued by the first respondent. Therefore, the contentions raised by the petitioner that the first respondent has no jurisdiction to indicate the punishment and that the show cause notice is pre-medidated and bad in law cannot be countenanced.
7. It has also been stated that the show cause notice issued by the Government to the petitioner is in conformity with the provisions of Rule 36(1)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and that the Government has the power and jurisdiction to issue the show cause notice, at any time. It cannot be said by the petitioner that the issue, once decided, cannot be re-opened. In the case of the petitioner, the issue was decided by the lower authority, namely, the Personal Assistant (General) to Collector, Coimbatore. Therefore, it was reviewed by the Government, in accordance with Rule 36(1)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Nothing prevents the Government from doing so. It has also been submitted that the leave applied for by the petitioner had not been sanctioned. Since the petitioner was on unauthorised absence for a period of more than one year, the show cause notice was issued by the Government to review the punishment granted earlier.
8. The learned counsel appearing on behalf of the petitioner had submitted that the Fundamental Rule 18(3), as it stood originally, contained the provision that if a government servant is on continuous leave for a period of more than five years, he could be punished with removal from service. This Rule was amended on 6.8.2007, stating that the said punishment of removal from service can be imposed on him if he is on unauthorised leave for more than one year, without the permission of the concerned authority.
9. The learned counsel had further submitted that according to G.O.Ms.No.1046, Personnel and Administrative Reforms (F.R.III) Department, dated 13.11.1987, a Government servant who had completed five years of service cannot be absent or be on leave for a period of one year, continuously. If he is on leave or absent, continuously, for more than a year, he could be removed from service. The said Government Order had come into force only after the petitioner had gone on leave from 6.8.1987. However, once she was intimated about the said Government order, she had rejoined in duty and she was given posting by an order, dated 1.12.1988, issued by the fourth respondent. Since the petitioner could not join duty immediately thereafter due to her family circumstances, she had sought for three months time, up to 31.3.1989, for joining duty. Time was granted as requested by the petitioner by an order of the fourth respondent, dated 19.1.1989. Thereafter, the petitioner by a letter, dated 27.3.1989, had requested for posting. Accordingly, she was given posting by an order, dated 8.4.89, passed by the fourth respondent. Since then, she has been continuing in service, without any blemish.
10. The learned counsel for the petitioner had also submitted that when the petitioner had applied for regularisation of her leave period, she was served with the charge memo, dated 15.11.1991, stating that she was on unauthorised leave for more than a year in violation of the orders passed in G.O.Ms.No.1046, Personnel and Administrative Reforms (F.R.III) Department, dated 13.11.1987. Even though the petitioner had submitted a detailed explanation, dated 25.11.1991, she was asked to appear for an enquiry, on 20.1.1992, before the District Supply Officer, Coimbatore. Accordingly, she had appeared for an enquiry to defend herself against the charges levelled against her. Based on the explanation submitted by the petitioner to the Enquiry Officer's report, a final order, dated 8.9.1992, had been passed by the fourth respondent, imposing a minor punishment of censure against the petitioner. Since, the petitioner had not preferred any appeal against the said order, it had become final. However, the first respondent, had issued a show cause notice, dated 21.9.1995, after a lapse of more than three years, asking the petitioner to show cause as to why she should not be removed from service. The said show cause notice is without jurisdiction and it has been issued contrary to law and therefore, it is arbitrary and void.
11. The learned counsel for the petitioner had relied on the decision of the Supreme Court in Siemens Ltd. Vs. State of Maharashtra and others 2006(12) SCC 33, in support of his contention. In the said case, the Supreme Court had held as follows:
"Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alea appears to have been without jurisdiction, but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. It is evident in the instate case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show-cause notice."
12. Even though the hearing of the writ petition was adjourned by this Court, on several occasions, to enable the Government Advocate appearing on behalf of the respondents to produce the files relating to the matter, he could not do so. However, the learned counsel appearing on behalf of the respondents had submitted that the first respondent had issued the show cause notice only in accordance with law and it is not beyond the jurisdiction of the Government to issue such a notice proposing to enhance the punishment granted to the petitioner for her unauthorised leave, which was contrary to the rules and the Government Order in G.O.Ms.No.1046, Personnel and Administrative Reforms (F.R.III) Department, dated 13.11.1987. Since Rule 36(1)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules empowers the first respondent, either on its own motion or otherwise, to call for the records of any enquiry or order and to review the same, at any time, to confirm, reduce or enhance the punishment already imposed, it cannot be said that the show cause notice, dated 21.9.1995, issued by the first respondent is arbitrary and invalid.
13. Considering the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that even though the first respondent had invoked Rule 36(1)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, to issue the show cause notice, dated 21.9.95, to the petitioner it is seen that it has been issued more than three years after the initial punishment of censure had been imposed on the petitioner, by an order of the fourth respondent, dated 8.9.92. Further, the learned counsel appearing on behalf of the respondents had not been in a position to show, either by way of records or otherwise, as to why the first respondent had decided to review the matter and to enhance the punishment imposed on the petitioner based on sufficient grounds. Sufficient reasons have not been shown by the first respondent to initiate further action against the petitioner and to impose the proposed punishment of removal from service.
14. Though this Court, in normal circumstances, would not be inclined to interfere at the stage of the issuing of a show cause notice, it is seen that the show cause notice has been issued after a delay of more than three years from the earlier order, dated 8.9.1992, imposing a minor punishment of `Censure' against the petitioner. Further, it is seen that there were no special circumstances necessitating the first respondent to review the earlier order and to impose a major punishment of removal from service against the petitioner. It has also been brought to the notice of this Court that the Tamilnadu Administrative Tribunal had granted an order of interim stay against the impugned show cause notice, dated 21.9.1995, issued by the first respondent, on 16.10.1995, and the said interim order has been in force till date. It has also been stated that the petitioner has been continuing in service as a Steno Typist, without any blemish, for more than 15 years after the fourth respondent had imposed the punishment of censure on her by his order, dated 8.9.1992.
15. At this stage of the hearing of the writ petition, the learned counsel appearing for the petitioner had submitted that the prayer for regularisation of the petitioner's leave period from 6.8.1987 to 31.3.1989 and from 1.4.1989 to 9.4.1989, as prayed for in the writ petition, is not being pressed. However, it has been prayed that this Court may be pleased to direct the respondents to treat the said periods as `leave on loss of pay'. On such submissions being made, the show cause notice issued by the first respondent, dated 21.9.1995, is set aside and the respondents are directed to treat the periods of leave availed by the petitioner between 6.8.1987 to 31.3.1989 and from 1.4.1989 to 9.4.1989 , as leave on loss of pay and to pass appropriate orders thereon, within a period of twelve weeks from the date of receipt of a copy of this order. Accordingly, the writ petition is partly allowed with the above directions. No costs.