Allowed

Mrs.K.Anbu Selvi v. the Chief Engineer (Agri.Engg)

Madras HC17 Aug 2021WP/11183/2009

Case brief

AI extract

What is this about?

The High Court of Madras allowed a writ petition against three impugned orders in disciplinary proceedings. The Court set aside an order that altered charges from minor to major penalties without further enquiry, emphasizing the need for a hearing. Additionally, the Court quashed original and appellate orders for lack of reasons justifying the rejection of the employee's explanation, deeming them

What did the court decide?

The impugned orders dated 17.05.2007, 27.08.2008, and 21.05.2009 were set aside. The writ petition was allowed. Connected miscellaneous petitions were closed.

Mrs.K.Anbu Selvi Vs the Chief Engineer (Agri.Engg) — Service and Employment | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 17.08.2021

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CORAM

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THE HON'BLE MR.JUSTICE M.SUNDAR

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W.P.NO.11183 OF 2009
AND
M.P.NOS.1 OF 2009 AND 1 OF 2011

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K.Anbu Selvi
Junior Draughting Officer
O/o. Assistant Executive Engineer (A.E.)
Pollachi, Coimbatore District.

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... Petitioner

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-Vs.-

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1.The Chief Engineer (Agri. Engg) Nandanam Chennai-600 035.

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2.The Superintending Engineer (Agricultural Engineering) Coimbatore Region Thadagam Road Coimbatore 641 013.

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3.The Executive Engineer Agricultural Engineering Tractor Workshop Campus Coimbatore - 641 003.

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.. Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records connected with the orders passed by the 3rd respondent No. , 5858/2006 dated 17.05.2007 and the order of confirmation passed by the 2nd respondent in appeal proceedings in

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https://hcservices.ecourts.gov.in/hcservices/

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M- 3693/2007 under Rule 17(a) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules dated 27.08.2008 and the consequential order of revision passed by the 1st respondent dated 21.05.2009 made in br/K/vz;/xe1 /923/2009, quash all the proceedings.

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For Petitioner : Mr.P.M.Subramaniam

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For Respondents : Mr.C.Selvaraj
Government Advocate

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O R D E R

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A month ago, in June of 2021, captioned writ petition
turned 12 as it was filed in this Court way back in June of
2009, to be precise on 18.06.2009. This one decade and two
years (12 years) old writ petition is listed today under the
cause list caption 'NOTICE REGARDING ADMISSION'.

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2. A perusal of case file placed before me brings to
light that notice has been ordered in captioned writ petition on
23.06.2009.
3. However, a counter affidavit has been filed by all
three respondents and pleadings are complete.

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4. Mr.P.M.Subramaniam, learned counsel appearing on
behalf of counsel on record for sole writ petitioner and
Mr.C.Selvaraj, learned State counsel on behalf of all three
respondents are before this Virtual Court.

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5. Both learned counsel consented for the captioned writ
petition being taken up, heard out and being disposed of as the
pleadings are complete.

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6. From the submissions made in this Virtual hearing
i.e., web hearing on a video conferencing platform and from the
case file placed before this Court, I find that the entire
matter turns on a very narrow compass and therefore, it is not
necessary to dilate much on facts and it will suffice to give a
thumbnail sketch of facts i.e., essential facts imperative for

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https://hcservices.ecourts.gov.in/hcservices/

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appreciating this order. Factual matrix in a nutshell is that the writ petitioner while working as Junior Drafting Officer in Pollachi, Coimbatore District in the office of 'Assistant Executive Engineer' ['AEE' for the sake of brevity], Pollachi, Coimbatore District had to face disciplinary proceedings; that disciplinary proceedings were under the erstwhile 'Tamil Nadu Civil Services (Classification, Control and Appeal) Rules' [hereinafter 'said Rules' for the sake of convenience and clarity]; that two charges were framed, one charge turns on allegation of not maintaining Village register pertaining to subsidy disbursement and second charge pertains to alleged lapse in examination of applications for subsidiary; that charges were amended but it may not be necessary to delve into the same; that writ petitioner was called upon to give her explanation; that writ petitioner did give her explanation; that post explanation, third respondent made an 'order dated 17.05.2007 bearing reference No. , 5858/2006' [hereinafter 'I impugned order' for the sake of convenience] stating that the explanation is unacceptable and imposing punishment of stoppage of increment for six months without cumulative effect [ MW khj fhyj;jpw;F jpwz;l gadpd;wp Cjpa cah;t[ epWj;jk; ]; that writ petitioner carried the matter in appeal to second respondent who is the appellate authority and second respondent vide 'order dated 27.08.2008 bearing reference No. M- 3693/2007' [hereinafter 'II impugned order' for the sake of convenience and clarity] confirmed the order made by third respondent; that writ petitioner carried the matter in revision to first respondent; that in the interregnum, writ petitioner was under suspension for 36 days; that first respondentappellate authority passed 'order dated 21.05.2009 bearing reference No. br/K/vz;/xe1 /923/2009' [hereinafter 'III impugned order' for the sake of convenience and clarity] by altering the charges from Rule 17(a) of said Rules to Rule 17(b) of said Rules and advised the original authority to proceed accordingly; that writ petitioner has filed the captioned writ petition assailing these three impugned orders.

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7. To be noted, Tamil Nadu Civil Services
(Classification, Control and Appeal) Rules, which is being
referred to as said Rules in this order, was rechristened as
Tamil Nadu Civil Services (Discipline and Appeal) Rules on and
from 23.06.1994. This is mentioned only for completion of facts.
However, captioned writ petition stands governed by said Rules.

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https://hcservices.ecourts.gov.in/hcservices/

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8. The narrative thus far captures the factual matrix in
a nutshell and the trajectory the matter has taken.

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9. Learned counsel for writ petitioner, submits that III
impugned order i.e., order of revisional authority (first
respondent) is bad as altering the charges from Rule 17(a) of
said Rules which deals with minor penalties to Rule 17(b) of
said Rules which deals with major penalties, cannot be done
without further enquiry and without giving opportunity to the
delinquent. In support of his contention, learned counsel
pressed into service a judgment of Hon'ble Division Bench in
Bommusamy's case [A.Bommusamy Vs. The Government of Tamil Nadu,
Rep. by its Secretary to Government, Co-operation, Food and
Consumer Protection Department, Fort St. George, Chennai and
four others reported in 2007 (3) CTC 518]. Regarding the I
impugned order and II impugned order, learned counsel for writ
petitioner emphasized that charges are vague and delinquent
cannot be called upon to respond to waived charges.

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10. In response to the aforesaid arguments,
Mr.C.Selvaraj, learned State counsel, notwithstanding very many
averments in the counter affidavit submitted that the charges
are not vague, revisional authority does have powers to confirm,
modify, set aside, reduce or enhance the punishment and
therefore, there is no error in the order made by the revisional
authority (first respondent). Learned State counsel also
emphasizes that the explanation given by writ petitioner was not
accepted and therefore, I impugned order and II impugned order
came to be passed.

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11. In reply submissions, learned counsel for writ
petitioner reiterated the submissions made in the opening
submissions.

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12. I now embark upon the exercise of discussing rival
submissions in the fact setting of the case and giving my
dispositive reasoning. The order of revisional authority i.e.,
first respondent (III impugned order) is clearly hit by

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https://hcservices.ecourts.gov.in/hcservices/

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Bommusamy's principle, as it has altered charges from Rule 17(a)
of said Rules to Rule 17(b) of said Rules without conducting
further enquiry and without giving opportunity to the delinquent
i.e., writ petitioner. This draws the curtains on III impugned
order.

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13. In the instant case, I refrain myself from going into
the question of whether doctrine of merger will operate in cases
of this nature, wherein an order of punishment by the
disciplinary authority is carried to a revisional authority via
appellate authority. The reason is, in the case on hand I and II
impugned orders i.e., orders made by the original and appellate
authorities fail to pass the muster (de hors the order of
revisional authority) as they are non speaking orders with no
reasons. Dispositive reason being the soul of an order imposing
punishment they cannot but be interfered with. In other words,
the question as to whether doctrine of merger will operate in
cases of this nature is left open in this order as the case on
hand can be decided de hors this question. However, there will
be discussion and dispositive reasoning qua interfering with I
and II impugned orders (orders of original authority and
appellate authority) infra in the paragraphs to follow.

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14. This takes me to I and II impugned orders made by
third and second respondents respectively i.e., original
authority and appellate authority. Though submissions made
before me was on charges being vague, what impresses me is that
the order of original authority is laconic and does not give
reasons. In this regard, this Court deems it appropriate to
scan and reproduce the order of third respondent (I impugned
order) dated 17.05.2007 and the same is as follows:

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https://hcservices.ecourts.gov.in/hcservices/

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15. A perusal of the above order makes it clear that the third respondent has said that the explanation given by writ petitioner is unacceptable ( md;dhh; mspj;Js;s tpsf;f';fs; Vw;ff;Toajhf ,y;iy )/ In one sentence, third respondent has stated md;dhh; mspj;Js;s tpsf;f';fs; Vw;ff;Toajhf ,y;iy which means the explanation given by writ petitioner is unacceptable without making a whisper or giving a shred of reason as to why and how the explanation given by writ petitioner is unacceptable. A careful perusal of Rule 17(a) of said Rules makes it clear that when a representation is given by delinquent, the same 'shall be taken into consideration' before imposing penalty. In this regard, the term 'consider' occurring in disciplinary proceedings came up for

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https://hcservices.ecourts.gov.in/hcservices/

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elucidation in Hon'ble Supreme Court in R.P.Bhatt case
[R.P.Bhatt Vs. Union of India reported in (1986) 2 SCC 651]. In
R.P. Bhatt case, Hon'ble Supreme Court dealing with Rule 27(2)
of the Central Civil Services (Classification, Control and
Appeal) Rules, 1965, has held that the term 'consider' implies
'due application of mind'. Therefore, the term 'consider' has
been interpreted in disciplinary proceedings to meet 'due
application of mind'. This R.P.Bhatt principle has been
followed by Hon'ble Mr.Justice V.Ramasubramanian, as a single
Judge of this Court (as his Lordship then was) in K.Kandasamy
case [K.Kandasamy Vs. Deputy Inspector General of Police,
Tiruchirappalli Range and others reported in (2006) 4 MLJ 1382].

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16. Therefore, if this principle that the term 'consider'
in disciplinary proceedings means 'due application of mind' is
applied in the case on hand, the inevitable sequitur is, there
has been no application of mind qua order made by third
respondent i.e., I impugned order. In appeal, there cannot be
any enlargement to support the order of original authority. In
any event, the order of appellate authority (II impugned order)
made by second respondent does not discuss the explanation given
by writ petitioner.

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17. Therefore I and II impugned orders also fail to pass the muster qua 'consider' occurring in Rule 17(a) of said Rules. The inevitable sequitur is, prayer in the writ petition is to be answered in affirmative. Prayer is answered in affirmative. The order dated 17.05.2007 bearing reference No. , 5858/2006 passed by the third respondent, order dated 27.08.2008 bearing reference No. M- 3693/2007 passed by the second respondent and order dated 21.05.2009 bearing reference No. br/K/vz;/xe1 /923/2009 passed by the first respondent are set aside. Captioned Writ Petition is allowed. Consequently, connected miscellaneous petitions namely, M.P.Nos.1 of 2009 and 1 of 2011 are closed. There shall be no order as to costs.

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Sd/-

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Assistant Registrar(CS-V)

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// True Copy //

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Sub Assistant Registrar

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mk

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https://hcservices.ecourts.gov.in/hcservices/

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To

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1.The Chief Engineer (Agri. Engg) Nandanam, Chennai-600 035.

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2.The Superintending Engineer (Agricultural Engineering) Coimbatore Region Thadagam Road

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Coimbatore 641 013.

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3.The Executive Engineer Agricultural Engineering Tractor Workshop Campus Coimbatore - 641 003.

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+1cc to Mr.P.M.Subramaniam, Advocate, S.R.No.41288

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+1cc to the Government Pleader, S.R.No.41485

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W.P.No.11183 of 2009

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VSN-II(CO)
RLP(16/09/2021)

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https://hcservices.ecourts.gov.in/hcservices/

Mrs.K.Anbu Selvi v. the Chief Engineer (Agri.Engg)

Case brief

What is this about?

What did the court decide?

Mrs.K.Anbu Selvi v. the Chief Engineer (Agri.Engg)

Case brief

What is this about?

What did the court decide?

What the court decided

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