The Principal Secretary to Government Vs M.Malarkandan

Prayer: Writ Appeal filed under Clause 15 of the Letters Patent to set aside the order passed in W.P(MD)No.2127 of 2019 dated 05.04.2023 and allow the present writ appeal.

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For Appellants : Mr.A.Kannan Additional Government Pleader For Respondent : Mr.K.Govindarajan for Mr.P.Karthik

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JUDGMENT

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(By G.R.SWAMINATHAN, J.)

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The State is on Appeal challenging the order dated 05.04.2023 made in W.P(MD)No.2127 of 2019 filed by the respondent herein. The respondent herein was working as a Forest Range Officer in Theni during the year 2013. During that period, forest officials came to know that some forest timber had been unlawfully felled. In this regard, the accused persons were secured; however, they were neither formally arrested nor produced before the jurisdictional Magistrate Court. The respondent herein prepared documents for compounding the offence and collected a sum of Rs.40,000/- (Rupees Forty Thousand only) from the accused. However, the District Forest Officer did not offer his concurrence. Thereupon, the delinquent had struck off the same.

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2.In this regard, major penalty proceedings were initiated against the writ petitioner and charge memo dated 05.12.2013 containing as many as 4 articles of charges was issued. Departmental enquiry was then conducted. Eventually vide G.O (2Pa) No.47 Environment and Forest Department dated 19.12.2018, the Government imposed punishment of stoppage of increment for a period of one year without cumulative effect. It was specifically mentioned that it would not affect the employee's pension. Aggrieved by the said order, the employee filed W.P(MD)No.2127 of 2019. The learned Single Judge vide order dated 05.04.2023 allowed the writ petition in the following terms:

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“6. The learned Counsel for the petitioner submitted that the enquiry officer has rendered a finding that the very drafting of the charge memo itself is erroneous and the relevant portion is extracted hereunder:

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“ ,f;Fw;wr;rhl;by; xNu Fw;wj;jpid ehd;F Fw;wq;fshf ghtpj;J xNu Fw;wj;jhspy; ehd;F Fw;wr;rhl;Lfs; Fw;wk; Rke;jg;gl;l mYtyh; xU Fw;wr;rhl;bid ehd;F Fw;wr;rhl;Lfshf Fwpg;gpl;L Fw;wj;jhd; toq;fpapUg;gJ Vw;Gilajd;W. Vnddpy; Fw;wk; rk;ke;jg;gl;l mYtyh; cah; mYtyh; ,zf;ff; fl;lz Mizapd;wp ,zf;ff;fl;lzk; t#y; nra;jpUg;gJ eilKiw mYtyf tpjpKiwfis k Pwpa nrayhf ,Ug;gjhf Fw;wr;rhl;L njhptpj;J ,Ue;jhy; NghJkhdJ. ,izf;fl;lzk; t#y; nra;j Fw;wk; Rkj;jg;gl;l mYtyUf;F mjpfhuk; ,y;yhjNghJ t#y; nra;j njhif

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Fiwthf ,Ug	;gjhfTk;> murpog;G njhif
Fiwthf fz	f;fpl;ljhfTk; kw;Wk; jtwhd
egh;fsplk; ,ur	Pjpy; ifnahg;gk; ngw;wjhfTk;>
rk;ge;jkpy;yhj	%d;W Fw;wr;rhl;Lfis Fw;w
eltbf;if	mYtyh; Fw;wj;jhspy;
Fwpg;gpl;bUg;gJ MFk;.	Fw;wr;rhl;bw;F njhlh;gpy;yhjJ
10.Fw;wr;hl;L	fs; thhpahf tprhuiz
mYtyh; KbT:
Fw;wr;rhl;L	1 : ep&gpf;fg;gl;lJ.
Fw;wr;rhl;L	2 : ep&gpf;fg;gltpy;iy.
Fw;wr;rhl;L	3 : ep&gpf;fg;gltpy;iy.
Fw;wr;rhl;L	4 : ep&gpf;fg;gltpy;iy.”

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On perusing this finding of the enquiry officer’s order this Court is of the considered opinion that when the framing of the charge itself is erroneous then the respondents ought not to have imposed punishment at all.

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7. The next contention of the petitioner is that the enquiry officer namely Marimuthu was holding the post of DFO Madurai and has held that the first charge alone is proved and other charges are not proved. But the same enquiry officer was posted as DFO Theni who acted as disciplinary authority and has held that all the four charges are proved. But the disciplinary authority is the 2nd respondent who is having jurisdiction to take action against the petitioner, but the action was taken by the 3rd respondent, hence the disciplinary action was taken without jurisdiction. But the contention of the respondent is that the 3rd respondent is the enquiry officer who has also acted as disciplinary authority and nowhere in the rule it is

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prohibited. Moreover the 3rd respondent has assisted the 2nd respondent and finally the 2nd respondent has imposed the punishment. After hearing the rival submissions this Court is of the considered opinion that the 3rd respondent has acted as enquiry officer and has held only first charge alone is proved. But while recommending to the 2nd respondent as disciplinary authority has held that the four charges are proved. But the final order is passed by the 2nd respondent who is the appropriate authority to impose punishment. Even though there are traces of violation of principles of natural justice, the same cannot be taken that the punishment is imposed without jurisdiction. Moreover, the 2nd respondent who is the disciplinary authority has analyzed separately and agreed with the enquiry officer's report by stating that first charge alone is proved and imposed a punishment of stoppage of increment for one year without cumulative effect. Therefore, on this ground the petitioner is bound to fail.

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8. Aggrieved over the punishment order, the petitioner had preferred an appeal to the Government. The contention of the petitioner is that the Government has not considered the grounds raised by the petitioner. The learned Counsel for the petitioner relied on Rule 23 of Tamil Nadu Civil Service (Discipline and Appeal) Rules, 1955 wherein it has been stated as under:

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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--

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(a) whether the facts on which the order was based have been established;

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(b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate and pass orders-

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(i) confirming, enhancing, reducing, or setting aside the penalty; or

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(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;”

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The Government has passed one paragraph order. There is no absolute discussion of any of the grounds that were raised by the petitioner. Therefore, this Court is of the considered opinion that the impugned order passed by the Government is bereft of any discussion or any reasoning. Hence, this Court is inclined to interfere with the punishment order.

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9. Moreover, when the respondents are accusing the petitioner for not following the procedures, the higher authority under whom the petitioner had sought institutions should also be subjected to disciplinary proceedings. Since the respondents have discriminated in taking proceedings on this ground, the petitioner is in an advantageous position and this Court is inclined to quash the punishment. At this juncture the learned Additional Government Pleader for the respondents vehemently opposed for quashing or reducing the punishment and submitted that the matter may be remanded back to the Government for reconsideration in

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order to pass a speaking order. The said contention of the learned Additional Government Pleader is rejected for the sole reason that the respondents have not taken action against the higher authorities, i.e., 3rd respondent, who has instructed orally through phone to levy penalty and directed to impose a penalty. In fact, the higher authority is supposed to direct the petitioner to fill up the above said forms and circulate the same. After perusing the same, the higher authority ought to have passed an order. The higher authority has also failed to follow the procedure, hence, the respondents have taken discriminatory action. Therefore, the contention of the learned Additional Government Pleader is not acceptable. Hence, the plea for remanding back is rejected.”

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Challenging the same, the State has filed this Writ Appeal.

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3.Very many contentions were urged on either side. We are of the view

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that the issue can be disposed of on a short ground. Admittedly, advisory opinion was obtained from TNPSC vide communication dated 14.11.2018 before passing final order. But it was communicated to the employee only along with the final order. This was not correct. The opinion of the TNPSC ought to have been furnished to the delinquent and explanation ought to have been sought and only thereafter, final order should have been passed. This is

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the procedure laid down in S.N.Narula Vs Union of India & Others ((2011) 4

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SCC 591) by the Hon'ble Supreme Court. Since this procedure has not been adopted, the order impugned in the writ petition was rightly set aside. In normal circumstances, we would have remanded the matter. But in this case, we do not do so for the reason that the learned Single Judge had undertaken an elaborate factual analysis to come to the conclusion that the writ petitioner was innocent of the charges. We are exercising jurisdiction under Clause 15 of the Letters Patent. Unless the approach of the learned Single Judge is irregular, we would not intervene. The case on hand falls under such category.

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4.This Writ Appeal stands dismissed. There shall be no order as to costs.

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Consequently, connected miscellaneous petitions are closed.

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[G.R.S., J.] [K.R.S., J.] 01.07.2025

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NCC : Yes / No Internet : Yes / No Index : Yes / No MGA/SKM

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