A. Sengodan vs Government of Tamil Nadu

M.M. Sundresh, J.—The Petitioner is working as a Forester in the Forest Department. A proceedings was initiated against the petitioner for

certain act alleged to have been committed by the Petitioner. A Charge memo has been issued on 02.06.1999 against the petitioner by the Tribunal

for Disciplinary Proceedings, Salem in T.D.P case No. 1 of 1999. In the said proceedings, findings have been given by the Tribunal on

30.05.2001. Thereafter, an explanation was called for from the petitioner by the second respondent on 29.01.2002 enclosing a copy of the

proceedings of the Tribunal for Disciplinary Proceedings. On the receipt of the said show cause notice, the petitioner had submitted his detailed

explanation on 22.04.2002. After considering the said explanation submitted by the petitioner, the disciplinary authority, namely second respondent

herein, has awarded a punishment of Censure. The Tribunal has also exonerated the petitioner in so far as charges 2 and 3 are concerned which

have been confirmed by the second respondent.

In so far as, the charge No. 1 is concerned, the petitioner has been charged that he has deliberately not filed a complaint against one Mr.

Arunachalam by receiving a illegal gratification of sum of Rs. 6,500/-. The second respondent has considered the relevant materials including the

findings of the Tribunal as well as the evidence of P.Ws.1 to 3 before coming to the conclusion. The second respondent has also given a finding

that the evidence of P.W.1 namely Mrs. Janasakthi, W/o. Arunachalam shows the involvement of the said person in earlier forest offences and was

also arrested and released on bail. Therefore, the second respondent has given a finding, that the said statement has to be taken in an appropriate

spirit. The second respondent has also observed that there are contradictions and conflicting version of P.Ws who happened to be close relatives

of the offender. However, for the above reasons, an order of Censure has been passed by the second respondent.

The petitioner has not chosen to challenge the same and said punishment has become final. As per the rules, the said punishment was

implemented. As such, the petitioner''s name was not considered for promotion during the currency of the punishment.

Thereafter, the Tribunal for Disciplinary Proceedings represented by the commissioner sent a letter to the Vigilance Commissioner, requesting

him to intimate the Government to take steps and to review the order passed by the Chief Executive of Forests, who is the second respondent

herein.

The record reveals that in pursuance to the same, the first respondent has requested the second respondent to send the original record in and by

its letter dated 06.12.2003. Thereafter the first respondent has initiated Suo Motu proceedings exercising its powers under Rule 36(1) of the Tamil

Nadu Civil Services (Discipline and Appeal) Rules. The petitioner has challenged the said proceedings dated 14.08.2005, initiated by the first

respondent, which is a show cause notice calling upon the petitioner to explain as to why the petitioner should not be awarded a punishment of

withholding of increment for a period of 3 years. Challenging the same, the petitioner has preferred this writ petition. Since the petitioner has not

given a reply, the first respondent has chosen to initiate proceedings and pass the final order imposing the punishment of withholding the future

increments for 3 years with cummulative effect. The petitioner has also filed Miscellaneous application in M.P. No. 1 of 2009 seeking to amend the

prayer by including the prayer for issuance of writ of certiorarified mandamus, calling for the records pertaining to the final order passed by the first

respondent dated 30.06.2009 under Rule 36(1) of the Tamil Nadu Civil Services (Discipline and Appeal). This Miscellaneous petition stands

allowed.

The learned Counsel for the petitioner submitted that the exercise of power under Rule of 36(1) of the Tamil Nadu Civil Services (Discipline and

Appeal) is impermissible in law, since after six years, the Suo Motu power has been exercised by the first respondent. The learned Counsel also

submitted that the impunged order is liable to be set aside, since the same would disclose the non application of mind, as no reason has been

assigned. The learned Counsel submitted that in asmuchas the proceedings have been initiated at the instance of the Commissioner for the Tribunal

for Disciplinary proceedings and the earlier proceeding has attained a finality, the first respondent cannot exercise his power in an arbitrary manner.

Therefore the learned Counsel sought for the writ petition being allowed. In support of his contention that the proceedings should be initiated within

a reasonable time while exercising Suo Motu power, the learned Counsel relied upon the Judgement of the Supreme Court reported in (2007) 11

Scc 363 (State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd.) and (2009) 1 MLJ 1049 (N. Bose v. State of T.N.)

The learned Government Advocate appearing for the second respondent submitted that the first respondent has come to an independent

decision to reopen the case, since it is felt that the punishment awarded is very minor for a serious offence. He has further submitted that the delay

is due to the administrative reason and asmuchas the power is available to the first respondent, the proceedings cannot be set aside on the ground

of delay. Moreover, the mere fact that the letter has been sent by the Commissioner of Tribunal for Disciplinary Proceedings to take action for

imposing higher punishment cannot be put against the first respondent, who had acted independently. Therefore the learned Government Advocate

submitted that the writ petition is liable to be dismissed.

As rightly contended by the learned Counsel for the petitioner, the commissioner of Tribunal for Disciplinary Proceedings has no role in the

nature of Punishment or on the decision making process. It is for the respondents 1 and 2, being the disciplinary as well as the appointing

authorities, to take appropriate decision in accordance with law. The Commissioner of Tribunal for Disciplinary Proceedings is only an authority for

conducting the proceedings. He has got no other role to play. A Persual of the record would show that the proceedings has been initiated only at

the instance of the Commissioner of Tribunal for Disciplinary Proceedings. In fact based upon the letter dated 03.01.2003 sent by the

Commissioner, a notice has been sent thereafter by the first respondent on 06.02.2003 to the second respondent requiring him to send the original

records. The reading of the letter dated 03.01.2003 would show that a request has been made by the Commissioner to review the order of

Censure. If an order of review has been done by the second respondent himself in this case, there is no necessity for the first respondent to

exercise its power of Suo Motu Revision. The said letter dated 03.01.2003 also indicates that the second respondent has not awarded the

adequate punishment. Therefore this Court is of the opinion that the very initiation of the proceedings by the first respondent itself is not proper on

the facts and circumstances of the present case.

In so far as other contention of the learned Counsel for the petitioner is concerned, a reading of the order passed by the first respondent would

show that no reason has been assigned by the first respondent for passing the said order. An order passed by the competent authority should

contain the reasons for passing the same. The first respondent has exercised its power as a disciplinary authority. A right to reasoning is a basic

right, being the foundation of the judicial system. The delinquent officer is entitled to know the reasons based upon which the order has been

passed.

In the Judgment report in (2008) 2 MLJ 1018 (SC) (Divisional Forest Officer, Kothagudem and Ors. v. Madhusudhan Rao), the Honourable

Supreme Court has held as follows:

In support of his aforesaid submission, Mr. Gururaja Rao referred to a Constitution Bench decision of this Court in State of Madras Vs. A.R.

Srinivasan, , which was a case involving compulsory retirement of a civil servant in which the aforesaid question had arisen. Repelling the argument

of Mr. Setalvad that even while affirming an order, an authority acting in a quasi-judicial character should indicate some reasons as to why it

accepted the findings of the lower forum, this Court held that having regard to the material which is made available to the State Government, it

would be somewhat unreasonable to suggest that the State Government must record its reasons why it accepted the findings of the Tribunal. This

Court went on to observe further that even while differing with the order of the lower forum, the State Government was merely required to give

reasons why it differs though it was not necessary that such reasons should be detailed or elaborate. The conclusion arrived at by the Constitution

Bench was that where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, it could not be said as

a matter of law that the State Government could not impose penalty against the delinquent officer in accordance with the findings of the Tribunal,

unless it gave reasons to show why the said findings were accepted by it.

In this regard reference was also made to two other decisions of this Court; (i) Som Datt Datta Vs. Union of India (UOI) and Others, , and (ii)

Tara Chand Khatri Vs. Municipal Corporation of Delhi and Others, where the aforesaid sentiments were reiterated. Mr. Gururaja Rao urged that

since this was a serious matter involving embezzlement of Government funds, the lacuna in the orders passed by the appellate and revisional

authorities should not be taken as fatal, since the Divisional Forest Officer had dealt with the charges and the response of the respondents thereto

in great detail.

Mr. D. Ramakrishna Reddy, learned Counsel appearing on behalf of the respondent, however, submitted that both the Administrative Tribunal

as also the High Court had correctly come to the conclusion that neither the appellate authority nor the revisional authority had applied their minds

to the appeal and the revision preferred by the respondent and the orders passed by the said authorities had been correctly set aside by the

Administrative Tribunal on such basis. Learned Counsel further urged that certain mandatory provisions of the Andhra Pradesh Civil Services

(Classification, Control and Appeal) Rules, had not been followed and as rightly pointed out both by the Tribunal as also the High Court, although

the Conservator of Forests as the appellate authority was empowered to enhance the punishment awarded by the Divisional Forest Officer, he was

required to deal with the response to the show cause notice with more application, instead of simply enhancing the punishment without giving any

reasons therefore. He also urged that non-supply of the Enquiry Officer''s Report was another fatal defect under Rule 20 of the aforesaid Rules.

He urged that the order of the High Court did not warrant any interference and the appeal was liable to be dismissed.

In support of his submissions, Mr. Ramakrishna Reddy referred to the decision of this Court in R.P. Bhatt Vs. Union of India and Ors (UOI) .,

, wherein it was observed that while considering an appeal against an order enhancing any penalty under the Central Civil Services (Classification,

Control and Appeal) Rules, requirements of Rule 27(2) must be complied with and consideration would mean a finding of satisfaction as to

whether the procedure laid down in the Rules had been complied with and if not complied with, whether such non-compliance had resulted in

violation of any of the provisions of the Constitution or in failure of justice. Mr. Ramakrishna Reddy submitted that the three cases cited by Mr.

Gururaja Rao had already been referred to and ultimately the appeal was allowed with the direction on the concerned authority to dispose of the

appeal before him afresh after applying his mind to the requirements of Rule 27(2) of the Central Civil Services Rules, 1965.

The next case referred to by Mr. Reddy is Ram Chander Vs. Union of India (UOI) and Others, where the decision in R.P. Bhatt v. Union of

India and Ors. (supra) was followed.

Having considered the submissions made on behalf of the respective parties and also having regard to the detailed manner in which the Andhra

Pradesh Administrative Tribunal had dealt with the matter, including the explanation given regarding the disbursement of the money received by the

respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court. No doubt, the

Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting

the appeal preferred by the respondent. A similar duty was cast on the revisional authority being the highest authority in the Department of Forests

in the State. Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined

by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case

as made out by the respondent herein and simply endorsed the punishment of dismissal though reducing it to removal from service.

It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order

passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or

revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons

should be indicated even in an order affirming the views of the lower forum.

Similarly, the recent Judgment, the Honourable Apex Court reported in (2009) 4 Supreme Court Cases 240 (Chairman, Disciplinary

Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and Ors.) has held as follows.

In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of

affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case has itself stated that the appellate

order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief

mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any

reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind

while affirming the order of the disciplinary authority.

The view we are taking was also taken by this Court in Divisional Forest Officer v. Madhusudhan Rao (vide SCC para 20 : JT para 19), and in

M.P. Industries Ltd. v. Union of India, Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India (vide SCC para 6 : AIR para 6), etc.

In the present case, since the appellate authority''s order does not contain any reasons, it does not show any application of mind.

The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must

have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied

its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some

reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.

No doubt, in S.N. Mukherjee case it has been observed that: (SCC p. 613, para 36)

...The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees

with the reasons contained in the order under challenge.

The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order

of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affimance. To take a contrary

view would mean that appellate authorities can simply dismiss appeals by one-line orders stating that they agree with the view of the lower

authority.

For the same reason, the decision of this Court in State of Madras v. A.R. Srinivasan (vide AIR para 15) has also to be understood as

explained by us above.

Hence, we agree with the High Court that reasons should have been contained in the appellate authority''s order, but we cannot understand

why the High Court has set aside the order of the disciplinary authority, in addition to setting aside the appellate order.

The first respondent has not even considered the evidence available on record. While revising the order passed by the competent authority, the

first respondent will have to act as an appellate authority and give a finding while exercising power of Suo Motu Revision under Rule 36(1) of the

Tamil Nadu Civil Services (Discipline and Appeal) Rules. Hence this Court of the opinion that the order passed by the first respondent is liable to

be set aside for want of proper reasons for passing the same.

It is also seen that the second respondent has passed final orders. It is also seen that the second respondent while imposing the order of

Censure has given a reason that there are contradiction in the evidence of witnesses and in any case, the evidence of P.W.1 cannot be taken into

consideration in its entirety. The first respondent has also not given any finding that the said reasoning has been arrived at wrongly or otherwise.

In so far as the contention of the learned Counsel for the petitioner that the proceedings are liable to be set aside on the question of delay, the

said contention has to accepted by this Court. No doubt, the first respondent is conferred with suo motu powers. Mere availability of such a

power cannot be construed that the same can be exercised at any stage. In the present case, the Commissioner for the Tribunal for disciplinary

proceedings sent a letter dated 03.01.2003 and in pursuant to the same, the first respondent asked for the records from the second respondent on

06.02.2003. There is no proper explanation for the long delay in not initiating the proceedings till 14.05.2008. A reading of the Rule 36(1) of the

Tamil Nadu Civil Services (Disciplinary Appeal) Rules clearly show that when a power is conferred upon an authority, other than the State

Government, six months is fixed. The said rule also specifies that the application for revision shall be dealt with in the same manner as if it were an

appeal under this rule. Moreover if the revisional authority to whom the revision has been preferred is the appellate authority himself, then the

revision petition should be submitted well within six months of the date of order which is sought to be revised. A reading of the above said Rule

would show that even though the period of limitation is not specifically provided, the first respondent has to exercise his power within a reasonable

time. In a case like the present case, it is not in dispute that the first respondent is an appellate authority. Supposing the revision is filed before the

first respondent by any other person then as per the Rule within 6 months, the 1st respondent has to act. No doubt in the present case the 1st

respondent has exercised the power under Rule 36(1) of the Tamil Nadu Civil Services (Discipline and Appeal) on his own motion. However, the

said power has to be considered in the light of the other provisions.

Taking into consideration the said facts, this Court of the opinion is that the delay in initiating proceedings by the first respondent cannot be

condoned and on that score also the impugned proceeding is liable to be set aside. In the Judgement report in (2007) 11 Scc 363 cited supra, the

Supreme Court has held that even in the case where no period of limitation has been prescribed, the same would not mean that, he may exercise

the power at any time. The Honourable Supreme Court was pleased to hold that if no period of limitation has been prescribed the statutory

authority has to exercise the jurisdiction within a reasonable time. Similarly in the decision report in (2009) 1 MLJ 1149 cited supra, this

Honourable Court while considering the very same rule has taken the view that the delay of seven years for exercising the suo motu power is not

proper.

Having perused the above Judgments, this Court is of the considered view that the said Judgments are applicable to the present case.

Accordingly the impugned proceeding is liable to be set aside on the ground of delay as well.

Taking into consideration all the above said facts, this Court is of the opinion that the writ petition is liable to be allowed. Accordingly, the same

is allowed. The respondent is directed to consider the petitioner''s case of promotion in accordance with law and on merits. Consequently, other

connected Miscellaneous Petitions are closed.