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Judgment
P. Jyothimani, J.—The brief facts of the case necessary to dispose of these writ petitions are as under:
1.1. The Petitioners were all appointed as Village Administrative Officers in the Nilgiris District. While serving as Village Administrative Officers in
the said district between various periods in 1997 to 2002, there have been allegations that the Petitioners have recommended for financial
assistance in respect of various individuals based on bogus certificates. The said loans were intended for destitutes. The Government issued G.O.
No. 844, Revenue Department, dated 28.8.1996 issuing certain guidelines for extending financial assistance to the poor and downtrodden people.
1.2. It is stated that based on the preliminary enquiry conducted by examining number of witnesses, the Petitioners were proceeded with
departmentally under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules by the District Collector, Nilgiris District by
issuing charge memos on 29.3.2000. The charges in respect of the Petitioner in W.P. No. 15979 of 2007 are as follows:
(i)that while he was working as Village Administrative Officer between 1.4.1998 and 31.3.1999, he has recommended ten persons for issuance of
financial assistance without referring to the bogus death certificates and without conducting enquiry, thereby causing a loss to the extent of Rs.
75,000/-, at the rate of Rs. 7,500/-each;
(ii)that in spite of the Government order dated 28.8.1996, he has recommended against the guidelines causing loss to the extent of Rs. 30,000/-;
(iii)that he has recommended loan to four families living above poverty line in violation of the instructions of the Government and thereby caused
loss to the Government to the tune of Rs. 30,000/-;
(iv)that even though as per the guidelines, at the time of the death of the person leading the family he should have been earning income, without
making proper enquiry, he has recommended in respect of one family and thus caused loss to the extent of Rs. 7,500/-;
(v)that in not recommending to the eligible person but based on a bogus certificate recommending to one person he has caused loss to the extent of
Rs. 7,500/-; and (vi)that he has failed to act as Village Administrative Officer in a proper manner, especially when his recommendation was the
basis for sanction of financial assistance.
1.3. The charges framed in respect of the Petitioner in W.P. No. 21790 of 2007 are as follows:
(i)that while working as Village Administrative Officer in Devala-I Village between 1.4.1998 and 31.3.1999, he has recommended one person for
financial assistance without properly referring to the documents and without conducting enquiry causing loss to the extent of Rs. 7,500/-;
(ii)that by recommending a person against the guidelines stipulated in the Government Order dated 28.8.1996, he has caused loss to the
Government to the tune of Rs. 7,500/-;
(iii)that in respect of one beneficiary, based on the bogus death certificate and without conducting proper enquiry, he has recommended financial
assistance thereby causing loss to the tune of Rs. 7,500/-; and (iv) that the beneficial schemes were misused, especially when his recommendation
was the basis for grant of sanction.
1.4. Likewise, in respect of the Petitioner in W.P. No. 24515 of 2007 the following charges were framed:
(i)that while working as a Village Administrative Officer in Gudalur between 1.4.1998 and 31.3.1999, he has recommended 52 persons as
beneficiaries based on the bogus certificates at the rate of Rs. 7,500/-to each of the persons causing loss to the extent of Rs. 3,90,000/-;
(ii)that against the guidelines issued under the Government Order dated 28.8.1996, without verifying as to whether there is male legal heir to the
deceased persons, in respect of 14 persons he has recommended financial assistance causing loss to the extent of Rs. 1,05,000/-;
(iii)that in respect of recommending financial aid improperly to one family on the basis that they are living below poverty line, he has caused loss to
the extent of Rs. 7,500/-;
(iv)that as per the scheme, at the time of the death of the person leading the family he must have been a person earning for the benefit of the family
and ignoring the said guideline by recommending five individuals, he has caused loss to the extent of Rs. 37,500/-;
(v)that without conducting proper enquiry in respect of four persons by recommending financial aid he has caused loss to the extent of Rs.
30,000/-;
(vi)that in respect of two persons he has recommended for financial assistance without making enquiry on the basis of the bogus certificates causing
loss to the extent of Rs. 15,000/-; and
(vii)that by his conduct he has prevented the benefit of the scheme from reaching the proper persons, especially when his recommendation was the
basis for the grant.
1.5. In respect of the Petitioner in W.P. No. 3478 of 2008, the following charges were framed:
(i)that when the Petitioner was working as Village Administrative Officer, Gudalur between 1.4.1998 and 31.3.1999, in respect of 24 persons he
has recommended financial aid based on the bogus certificates thereby causing loss to the Government to the extent of Rs. 1,80,000/-;
(ii)that against the guidelines in the Government Order dated 28.8.1996 by recommending a family for the purpose of financial aid he has caused
loss to the extent of Rs. 7,500/-;
(iii)that when as per the scheme while a person who died must be in a position of earning at the time of his death, without properly conducting
enquiry while recommending in respect of two families, he has caused loss to the extent of Rs. 15,000/-;
(iv)that by not recommending the persons who are eligible and recommending five ineligible persons he has caused 8loss to the extent of Rs.
37,500/-;
(v)that he has recommended two persons for the benefits on the basis of bogus certificates causing loss to the extent of Rs. 15,000/-; and (vi)that
by his conduct he has not worked for reaching of the benefits of the scheme to the persons intended, especially when his recommendation was the
basis for the assistance granted.
1.6. In respect of those charges framed against each of the Petitioners along with various annexures referred thereto, the Petitioners have submitted
their explanations denying the charges.
1.7. Pending disciplinary proceedings, by virtue of the circular issued by the Principal Commissioner and Commissioner of Revenue
Administration, Chennai dated 8.5.1997, the Tahsildar, Gudalur has issued a notice on 10.1.2001 directing the Petitioners in these writ petitions,
apart from the Revenue Inspectors, to deposit 50% of the loss in respect of the Village Administrative Officers and 30% of loss in respect of the
Revenue Inspectors, specifically stating that based on telephonic instruction of the District Collector and District Revenue Officer and as per the
direction of the Commissioner of Revenue Administration, it is directed to deposit the said amount for relieving them from the above said charges.
According to the Petitioners, it was based on such direction, they have deposited the amount, of course without prejudice to their defence which
they have taken by way of explanations.
1.8. It is stated that the District Collector has appointed an Enquiry Officer, viz., The District Supply Officer, Uthagamandalam, to conduct oral
enquiry against the Petitioners. The Enquiry Officer directed the Petitioners to be present for an oral enquiry on 11.11.2002 and it is the case of the
Petitioners that during the time of the enquiry no witnesses were examined on the side of the Respondents. It is stated that only statements were
obtained by the Enquiry Officer from the Petitioners and there was no opportunity to cross-examine the statements of the official witnesses which
were recorded by the Enquiry Officer. Ultimately, the Enquiry Officer, by his report dated 25.2.2002 has recommended that all charges are
proved.
1.9. The report of the Enquiry Officer was served to the Petitioners for further representation and the Petitioners have also submitted their further
representations and appeared for personal hearing. However, after lapse of three years, the first Respondent passed orders on 29.11.2005 in
respect of the Petitioners in W.P. No. 15979, 21790 and 24515 of 2007 and on 24.11.2006 in respect of the Petitioner in W.P. No. 3478 of
2008 agreeing with the findings of the Enquiry Officer and imposed punishment of dismissal from service. The Petitioners have preferred appeals
against the punishment to the second Respondent, who has straight-away rejected the appeals of the Petitioners in W.P. No. 15979, 21790 and
24515 of 2007 on 14.3.2007 and the same was communicated to them on 18.4.2007. However, in respect of the Petitioner in W.P. No. 3478 of
2008, the third Respondent has rejected the appeal by order dated 2.11.2007, which was served on the Petitioner on 31.1.2008.
1.10. The Petitioners have challenged the impugned orders of the Respondents on various grounds, including:
(i)that the order of the first Respondent is a non speaking order; (ii)that the second Respondent, being the Appellate Authority, has not applied his
mind;
(iii)that the disciplinary proceeding was not properly conducted and no prosecution witnesses were examined to prove the charges against the
Petitioners;
(iv)that it is not the allegation of any pecuniary gain made by the Petitioners in recommending the financial assistance;
(v)that even in respect of the charges, as per the circular issued by the second Respondent and on condition that the charges will be dropped, the
Petitioners were directed to deposit 50% of the loss which has been caused, which has been paid and in spite of the same the disciplinary
proceeding has been proceeded with and orders of dismissal have been passed; and
(vi)that the Petitioners have in fact followed the guidelines prescribed by the government in respect of issuance of the financial aid to the
downtrodden people.
2.1. In the counter affidavit filed by the first Respondent, while the facts are not disputed, it is stated that on the basis of the report of the Revenue
Divisional Officer, Gudalur, the District Collector has framed charges against the Special Tahsildar (Distress Relief Scheme), Revenue Inspectors,
Gudalur and Devarsholai and eight Village Administrative Officers, including the Petitioners, for recommending financial assistance under the
Distress Relief Scheme to ineligible persons and therefore, the charges were framed against them. It is stated that by depositing 50% of the
amount, the Petitioners have in effect accepted the charges. It is stated that the Village Administrative Officers being the root level officers, their
recommendation is the basis for the purpose of grant of financial assistance.
2.2. It is stated that after the explanation was submitted, the Enquiry Officer appointed conducted enquiry and based on the report of the Enquiry
Officer submitted to the first Respondent and on the basis of the records, the first Respondent has passed the impugned orders dismissing the
Petitioners and the appeal was also rejected by the Appellate Authority after referring to various records.
3.1. The main contention of Mr. K. Venkataramani, learned Senior Counsel for the Petitioners in W.P. No. 15979, 21790 and 24515 of 2007
and Mr. S. Doraisamy, learned Counsel for the Petitioner in W.P. No. 3478 of 2008 is that the deposit of 50% has been made by all the
Petitioners, even though without prejudice to their rights, on a specific assurance that they would be relieved of the charges. He would rely upon
the notice issued by the Tahsildar dated 10.1.2001, who, in his turn, has issued direction to pay 50% on the basis of the circular of the second
Respondent dated 8.5.1997.
3.2. The learned Counsel for the Petitioners would also submit that the disciplinary proceedings were not conducted as per the guidelines issued by
the Hon''ble Supreme Court in State of Uttaranchal and Ors. v. Kharak Singh, 2008 8 SCC 236, in the sense that the Respondents ought to have
produced witnesses for proving the individual charges against the Petitioners giving opportunity to the Petitioners to cross-examine the witnesses
and such procedure having not been followed, the impugned orders of punishment are liable to be set aside.
On the other hand, it is the contention of the learned Additional Government Pleader appearing for the Respondents that the mere fact that 50%
of the loss caused by each of the Petitioners has been remitted by them shows that they have admitted the correctness of the charges and there is
no prohibition for the department from proceeding with the charges.
For appreciating the arguments of the learned Counsel for the Petitioners, it is relevant to extract the proceedings of the second Respondent
dated 8.5.1997, which is in the form of a circular issued by the second Respondent to all Subordinate Officers by way of instructions:
Copy of Circular Roc. No. D4/107531/95 from the Principal Commissioner and Commissioner of Revenue Admn. Chepauk, Chennai.5 (dt.
8.5.''97)
Sub:Public Service - Revenue Department - Punishment inflicted by the Collector - Unjustice instructions issued.
While examining an appeal preferred by a retired Tahsildar against the orders of recovery passed by the Collector for the loss caused to
Government on account of non-collection of bid amount and for certain lapses in the conduct of fishery rental sale in public auction, I have noticed
that the Tahsildar, alone was held fully responsible for the loss caused to Government.
In the case cited above, due to negligence and lack of devotion to duty or perform the Statutory function of conducting sale as per the
instructions of the Government, the Government had incurred a loss of Revenue. Therefore, the Collector had initiated action against all concerned
(i.e.) the Tahsildar, Zonal Deputy Tahsildar, Revenue Inspector and Village Administrative Officer under Rule 17(b) of the Tamilnadu Civil
Services (Discipline and Appeal) and after observing all the formalities, the Collector held the Tahsildar alone as responsible for the loss and
ordered to recover the entire amount of loss caused to Government and dropped action against the other officials.
It is pointed out that holding the Tahsildar alone responsible for the lapses is neither correct nor fair. It is the first and foremost duty of the
Village Administrative Officer to collect the public auction sale amount. Even without the instruction of the Tahsildar, he ought to have collected the
sale amount on the day itself and remitted the amount on the very next day. He should not strike his bounden primary duty. The Revenue Inspector
and Zonal Deputy Tahsildar are also equally responsible for anything and everything in their jurisdiction. The Tahsildar alone cannot be held to be
guilty. As all of them (i.e. Village Administrative Officer, Revenue Inspector, Zonal Deputy Tahsildar and Tahsildar) are also responsible for the
loss of Revenue to Government, they deserve their due share in making good the loss of revenue sustained by Government. Therefore, the loss of
revenue should be recovered in proportionate to the gravity of offence committed by them as given below:
Village Administrative Officer 50%
Revenue Inspector 30
Deputy Tahsildars 15%
Tahsildars 5%
Whenever, disciplinary action initiated against the officials for this kind of lapses, responsibility should be fixed on each official and proportionate
amount of loss sustained by the Government should be recovered from each official in the proportion indicated above.
These instructions should be followed scrupulously in future.
The receipt of this letter may be acknowledged early.
A reference to the circular shows that it was issued by the second Respondent in the circumstance that when a Tahsildar was imposed with the
punishment of recovery in respect of the loss caused to the Government on account of non collection of bid amount. Taking note of the fact that the
Tahsildar alone was held responsible for the loss caused to the Government, the second Respondent in the circular stated that it is not correct to
make the Tahsildar alone liable and therefore, if loss is caused, the loss has to be proportionately borne by the various officers, viz., the Village
Administrative Officer is to be imposed with 50% of the liability, while the Revenue Inspector with 30%, the Deputy Tahsildar with 15% and the
Tahsildar with 5%. Therefore, under the circular issued by the second Respondent, the issue was not relating to the recommendation for the
purpose granting benefits under a scheme, but failure to make collection of bid amount. In any event, by either of the act the disciplinary
proceeding is for the loss caused by the conduct and it was in those circumstances the second Respondent has ordered that only a proportionate
amount be received. In fact, in the said circular, the second Respondent has not put an end to the disciplinary proceeding. What all he has stated is
that whenever disciplinary action is initiated against the officials for this kind of lapses, responsibility should be fixed on each official and
proportionate amount of loss sustained by the Government should be recovered from each official in the proportion indicated in the circular.
Now, the Petitioners rely upon the notice issued by the Tahsildar dated 10.1.2001, which is as follows:
By a reading of the said notice of the Tahsildar, it is seen that the Collector has given instruction to issue such notice to the Petitioners directing
them to deposit 50% of the amount etc. for the purpose of relieving them of the charges based on the circular issued by the second Respondent
dated 8.5.1997.
It is to be noted that no one of the Petitioners has ever raised any ground in the affidavits filed in support of these writ petitions that 50% of the
amount was directed to be paid on a specific ground that the Petitioners will be exonerated of the charges. This is because the charges framed
against the Petitioners were on 29.3.2000 and it was pending the said charges, in respect of which the Petitioners have submitted their
explanations, the Tahsildar has issued the notice dated 10.1.2001 stating that 50% of the loss sustained by the Government has to be deposited for
the purpose of relieving them, of course, based on a telephonic conversation from the District Collector. There is no specific ground raised by the
Petitioners that they were made to deposit the amount only on the belief that they will be relieved from the charges and that was never taken as a
point at the time of enquiry in the departmental proceeding. In the affidavit filed by the Collector also there is nothing to the effect that by telephonic
conversation he has permitted the Tahsildar to issue such a notice. In any event, it is not the Tahsildar who is the authority to exonerate the
Petitioners of the charges. Therefore, a reading of the circular by the second Respondent, elicited above, nowhere states that on recovery of the
amount proportionately the charges should not be proceeded with. There is no positive order from the Respondents that on payment of 50% of the
amount the Petitioners will be exonerated from the charges. Therefore, the mere reliance placed on the notice of the Tahsildar dated 10.1.2001
cannot be certainly a ground to hold that simply because the Petitioners have deposited the amount of 50% of their liability as per the direction, the
disciplinary proceeding is vitiated. For the said reasons, I do not accept the contention of the learned Counsel for the Petitioners in this regard.
The Petitioners have in detail explained about the incorrectness of every one of the charges. Law is well settled that when once the disciplinary
authority as well as the appellate authority have referred to the charges, explanation, evidence of the witnesses and the report of the Enquiry
Officer, this Court while exercising its jurisdiction under Article 226 of the Constitution of India cannot sit as an Appellate Authority for re-
appreciation of evidence. Therefore, I do not propose to go into the explanations submitted by the Petitioners in respect of each and everyone of
the charges. But the question to be decided is as to whether there has been a proper consideration, for it is the decision making process which can
be interfered with by the Court if there is any deficiency and it is not the decision.
The learned Counsel for the Petitioners has raised a crucial issue about the procedure followed in the enquiry. Therefore, it is relevant to refer
to the report of the Enquiry Officer. A reference to the report of the Enquiry Officer shows that in respect of each and every one of the charges the
Enquiry Officer has gone into the evidence by himself as per the files and has come to be a conclusion that predominantly the death certificates
which are available on the files are suspicious in nature. It is further relevant to note that except his own reference to the files, there is no other
evidence except the statements which have been recorded by the Enquiry Officer from the Petitioners, who are the delinquents. This is evident
from the following statement in the report of the Enquiry Officer:
Therefore, it is clear that the report of the Enquiry Officer has been given purely based on the charge memo, explanation submitted by the
delinquents and the statements given by the delinquents before the Enquiry Officer on 15.6.2001. There is absolutely no evidence on the side of the
department to substantiate each and everyone of the case with proper witnesses so as to enable the delinquents to cross-examine them. Certainly,
the procedure followed by the Enquiry Officer is totally alien to the principles of disciplinary proceeding and the procedure to be followed. It is trite
law that in the departmental proceedings when the charges are framed, explanation is submitted and Enquiry Officer is appointed, then the
department has to let in evidence at the first instance and prove the charges through evidence and records and such witness must be placed for
cross-examination by the delinquent and it is only thereafter by appreciation of evidence in the light of the documents the Enquiry Officer can come
to a conclusion about the delinquency while giving a report.
On the other hand, on the facts of the present case, for the charges framed, the delinquents have submitted their explanations. The Enquiry
Officer was appointed and he appears to have called the delinquents on 15.6.2001 and recorded their statements and he himself has gone into the
files without giving any opportunity to the Petitioners and then came to a conclusion that there is a suspicion about the various death certificates
submitted for availing financial aid and it is based on that the report has been submitted. It is this aspect of the enquiry which is totally alien to the
principles of disciplinary proceeding and that is a violation of the principles of natural justice. The Hon''ble Supreme Court in State of Uttaranchal
and Ors. v. Kharak Singh, 2008 8 SCC 236 has evolved the principles as follows:
From the above decisions, the following principles would emerge:
(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer,
then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the
enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an
opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead
any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy
of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.
The procedure which is to be followed in disciplinary proceedings, as confirmed by the Supreme Court, apparently has not been followed by the
Enquiry Officer at all.
On a reference to the impugned order of the first Respondent, who is the original authority, it is clear that he has in detail explained whatever is
available on record and files to come to a conclusion that he is satisfied about the delinquency on the part of the Petitioners. However, the first
Respondent has failed to note that except that the Enquiry Officer after referring to the files has come to a conclusion that bogus death certificates
have been produced, which may be even correct on fact, there is no other consideration by the first Respondent as to whether the Enquiry Officer
has conducted the enquiry in a proper manner at all. The relevant portion of the order of the first Respondent which is as follows:
Unfortunately, while filing appeal against the order of the first Respondent to the second Respondent, the Petitioners have not raised the vital
point about the validity of the enquiry proceedings, just as the Petitioners have failed to put forth the said point before the first Respondent/original
authority also. They have only raised appeal on merits. The second Respondent in W.P. Nos. 15979, 21790 and 24515 of 2007 and the third
Respondent in W.P. No. 3478 of 2008 has passed a crisp order only on the basis that 50% of the amount has been deposited by the Petitioners
and therefore, it should be deemed that the Petitioners have not made proper enquiry before recommending for sanction of financial aid to the
beneficiaries and thereby rejected the appeal in the following terms:
In any event, in respect of the acts alleged to have been committed by the Petitioners in 1998-1999, charges were framed on 29.3.2000 and
the first Respondent has passed the impugned orders on 29.11.2005 in respect of the Petitioners in W.P. Nos. 15979, 21790 and 24515 of 2007
and on 24.11.2006 in respect of the Petitioner in W.P. No. 3478 of 2008, while the second Respondent in W.P. Nos. 15979, 21790 and 24515
of 2007 has rejected the appeals on 14.3.2007 and third Respondent in W.P. No. 3478 of 2008 has rejected the appeal on 2.11.2007. There is
no valid explanation for the said delay of five years from 29.3.2000 to 29.11.2005 on the side of the Respondents.
In P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, , it was held by the Supreme Court that after a long and unexplained delay of ten
years in initiating disciplinary proceedings, such proceedings cannot be allowed to continue, since the same is prejudicial to the government servant
resulting in unbearable mental agony. The Supreme Court has held as follows:
Under the circumstances, we are of the opinion that allowing the Respondent to proceed further with the departmental proceedings at this distance
of time will be very prejudicial to the Appellant. Keeping a higher government official under charges of corruption and disputed integrity would
cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should,
therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in
the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The Appellant had
already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the Appellant
due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the
procedure for initiating the disciplinary proceedings, the Appellant should not be made to suffer.
By the said judgment it is clear that in the absence of any impediment on the part of the department in proceeding with the disciplinary proceedings
at the earliest point of time, if the department sleeps over the issue, it would be detrimental to the interest of the delinquent and certainly such
disciplinary proceedings cannot be allowed to continue. If by virtue of unexplained delay there has been some detriment caused to the delinquent,
the same is fatal to the disciplinary proceedings.
For the reasons that enquiry has not been conducted in the manner known to law and the delay in disciplinary proceeding has not been properly
explained and taking note of the fact that even as per the direction of the second Respondent 50% of the amount has already been deposited by
the Petitioners, I am of the view that remitting of the matter for the purpose of following the procedure contemplated under law will not subserve
any purpose and therefore, the writ petitions stand allowed and the impugned orders stand set aside. No costs.