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A. Kanniah Chettiar Vs. the Collector of South Arcot, Cuddalore and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 1035 of 1961
Judge
Reported inAIR1965Mad155; [1964(8)FLR418]
ActsCivil Service (Classification, Control and Appeal) Rules - Rules 8 and 17; Constitution of India - Articles 31(2), 226 and 311(2)
AppellantA. Kanniah Chettiar
RespondentThe Collector of South Arcot, Cuddalore and anr.
Excerpt:
.....relating to certain survey numbers which he had to inspect. all or any of the provisions of sub-rules (a) and (b) may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived where there is a difficulty in observing exactly the requirements of the sub-rules and those requirements can be waived without injustice to the person charged. (8) in the present case the punishment that had been imposed on the petitioner appears to be a combination of both reduction to a lower rank in a time-scale as well as withholding or increments for all time in the future during the service of the petitioner. if in any particular case it is proposed to deprive a person of that right also the authority imposing other penalty should clearly indicate that the penalty of..........together with an examination of the facts afforded by the records, the collector had three of the charges, charges i, ix and x, to have been proved. it is also stated that because the petitioner adopted delaying tactics calculated to protract the proceedings, rule 17(b)(i) of the rules was waived and rule 17(d)(l) was applied. it is contended in the counter affidavit that this latter rule can be resorted to by the enquiring officer when the delinquent officer deliberately avoids his explanation or appearance before the enquiring officer. it is accordingly the contention of the respondents that the impugned order does not suffer from any invalidity whatsoever.(3) the first charge against the petitioner was that he had submitted a petition against the special tahsildar containing wild.....
Judgment:
ORDER

(1) The petitioner was an upper division clerk in the office of the Special Tahsildar, Cuddalore. He was later transferred as special Revenue Inspector for Land Acquisition. In September 1957, a charge memo was issued to him containing certain charges. The petitioner prayed that the enquiry should be referred to some other officer, as the Special Tahsildar who issued the charge memo, was prejudiced against him. The matter was thereafter enquired into by the Special Deputy Collector, Neyveli. The petitioner made a further request that the matter might be transferred to be dealt with by the Revenue Divisional Officer, Tirukoilur, as he was then working in the Taluk Office, Vriddhachalam. This request was refused. Subsequently the special deputy Collector, made an order calling upon the petitioner to show cause why he should not be dismissed from service. A questionnaire was also furnished to the petitioner who was directed to fill it up. The petitioner submitted his written explanation and made the definite request that the might be given a full opportunity to disprove the charge framed against him.

The collector of South Arcot, however, took the view that there had been an admission of the charges, that proof of the charges was established by the records, and that there was no need to conduct any enquiry. He also waived a personal enquiry under Rule 17(d)(i) of the Civil Service (Classification, Control and Appeal) rules. On the material afforded by the records, he reached the provisional conclusion that the petitioner should be reduced in rank permanently as a lower division clerk. A notice to show cause against the proposed penalty was given to the petitioner, to which he submitted his reply.

But finally the Collector made an order reducing the pay of the petitioner by four stages in the time scale and also directed that he should permanently occupy that stage in the time-scale of pay. It is this order which was confirmed on appeal by the Revenue Board which is impugned in the present proceeding under Art. 226. Briefly stated the contention of the petitioner is that waiver of personal enquiry under Rule 17(d)(i) on which the Collector of South Arcot purported to act is wholly unjustified, and that in a case where the punishment is one of reduction in rank, it is not open to the Collector to avoid a personal enquiry for any reason whatever. Violation of the rule is also linked with the constitutional failure to afford the petitioner a reasonable opportunity of defending himself. It is on these grounds that the order is impugned.

(2) On behalf of the Collector of South Arcot it is claimed that on a perusal of the explanation of the petitioner together with an examination of the facts afforded by the records, the Collector had three of the charges, charges I, IX and X, to have been proved. It is also stated that because the petitioner adopted delaying tactics calculated to protract the proceedings, Rule 17(b)(i) of the Rules was waived and Rule 17(d)(l) was applied. It is contended in the counter affidavit that this latter rule can be resorted to by the enquiring officer when the delinquent officer deliberately avoids his explanation or appearance before the Enquiring Officer. It is accordingly the contention of the respondents that the impugned order does not suffer from any invalidity whatsoever.

(3) The first charge against the petitioner was that he had submitted a petition against the special Tahsildar containing wild allegations, and mischievous insinuations clothed in implicit and impertinent language, and that he gave such a petition 'without any provocation' and after surreptitiously getting access to the report of the Special Tahsildar. The next charge that was held to have been proved is charge IX. That charge related, to certain defects in the work of the petitioner as Revenue Inspector which defects were noticed by the Special Tahsildar during his inspection. Charge X is of a similar nature and related to the failure of the petitioner to discover certain particulars relating to certain survey numbers which he had to inspect.

(4) It will be noticed that the first charge is a serious one; the others are trifling. Mr. V. P. Raman, learned counsel for the petitioner, claims that the first charge as it stands cannot be said to have been established. The charge specifically mentions that the petitioner gave a petition against the Special Tahsildar 'without any provocation'. It is the contention of the learned counsel that this part of the charge that he acted 'without any provocation' has not been established at all. I am not prepared to accept this contention. Though the expression 'without any provocation' has been used, that is not the gravamen of the charge. The charge simply is that the petitioner as a subordinate officer sent a petition against this immediate superior-a petition which contained mischievous insinuations and was clothed in impertinent language. I am not entering into the question whether the petition was of that description. That is unnecessary, in view of certain other features to which I shall presently refer.

(5) The ultimate penalty that was imposed on the petitioner is undoubtedly one of reduction in rank. In the second show cause notice that was issued by the Collector who is the punishing authority, the petitioner was asked to how cause why he should not be feuded permanently as a lower division clerk. This undoubtedly is reduction I rank, one of the punishments covered by Article 31(2) of the Constitution. In his explanation the petitioner, while he admitted having sent a petition against the Special Tahsildar, demanded that an enquiry should be conducted, because the facts which he alleged were capable of being proved, and he would put forward his defence that the allegations contained in the petition could be established, and that he might be exonerated from the charge framed against him.

In a case, which involves one of the punishments mentioned in Art. 311(2), if is not open to the enquiring or punishing authority to waive the enquiry under Rule 17(b)(i), which applied to the punishment of reduction to lower rank, compulsory retirement, removal or dismissal. After charges are framed and communicated to the person charged, he is required within a reasonable time to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. The rule is mandatory in that an oral enquiry shall be held if such enquiry is desired by the person charged. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish provided that the officer conducting the enquiry may, for special and sufficient reasons refuse to call a witness. Under this rule, therefore, it shall be given to him.

I have been taken through the explanation that was submitted by the petitioner. In more than one part of the explanation, the petitioner has demanded that an enquiry should be conducted into there charges, so that he would have an opportunity of disproving the charges. Rule 17(d)(i) states:

'All or any of the provisions of sub-rules (a) and (b) may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived where there is a difficulty in observing exactly the requirements of the sub-rules and those requirements can be waived without injustice to the person charged.'

The right which is given to the enquiring authority, to waive the requirements of sub-rule (b) is not an absolute one. It depends upon its being established that there is some practical difficulty in observing those requirements. It is not the case of the department that there was any difficulty I conducting an oral enquiry into the charges. The waiver of the enquiry which the petitioner is entitled to under Rule 17(b)(i) is, in the circumstances of this case, wholly unjustified.

(6) It has been pointed out by the Supreme Court that an adequate opportunity to defend must consists of the proper enquiry being conducted before the stage, when the delinquent officer is asked to show cause against the proposed punishment, is reached. It need hardly be stated that in this case there has not been any enquiry at all.

(7) Rule 8 of the Classification rules which specified the punishments that may be imposed includes withholding of increments or promotion or reduction to a lower rank in the seniority list or to a lower post or time-scale, whether in the same service, or in another service, State or Subordinate, or to a lower stage in a time-scale.

(8) In the present case the punishment that had been imposed on the petitioner appears to be a combination of both reduction to a lower rank in a time-scale as well as withholding or increments for all time in the future during the service of the petitioner. In this regard a Government Order has been brought to my notice by the learned counsel for the petitioner. In G. O. No. 2886 Public (Services) dated 15-12-1941 the manner in which reduction to a lower rank should be made as a measure of penalty has been indicated. This rule states:

'Reduction--Reduction to a lower stage in a time-scale may be either:-(1) Temporary, for example, a person drawing Rs. 60 may be ordered to draw Rs. 40, for a specified period at the end of which he will begin to draw Rs. 60, or (2) permanent--that is, he is reduced to Rs. 40 and does not go back to Rs. 60 at the end of a specified period. In the latter case, the right to draw increments from the lower stage is not, however, affected. If in any particular case it is proposed to deprive a person of that right also the authority imposing other penalty should clearly indicate that the penalty of withholding of future increments has also been imposed.'

I have examined the show cause notice that was issued to the petitioner and I am unable to understand what precise penalty was intended to be imposed. It is impossible to read the reference to the punishment in the show cause notice as indicating that the officer proposed to inflict the penalty of permanent reduction coupled with the withholding of future increments. This is very serious defect in the show cause notice.

(9) There has been, to my mind, a gross violation of the principles of natural justice in that a reasonable opportunity to defend himself has not been afforded to the petitioner. There are other infirmities in the proceedings which I have pointed out. The result is that the order cannot be supported. It is quashed. Rule nisi is made absolute. There will be no order as to costs.

(10) Petition allowed


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