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Rajagopal Pillai Vs. the Sub-collector and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1980)2MLJ447
AppellantRajagopal Pillai
RespondentThe Sub-collector and ors.
Cases ReferredM. Manickam v. State of Tamil Nadu W.A. No.
Excerpt:
- - the petitioner failed in his appeal before the district revenue officer (the second respondent), but on further revision to the board of revenue (the third respondent), the findings on the charges were affirmed, but nevertheless, the petitioner's earlier record of good service was taken into consideration and the punishment was modified from one of dismissal to one of suspension for a period of three years. ibrahim saheb air1955mad305 ,to point out that though the board of revenue and the government-have undoubted power to superintend and also the power to frame rules and amend them from time to time in exercise of their power of superintendence, once a rule has been framed, the board as well as the government is bound by the very rule when it acts as a quasi-judicial tribunal and.....orders. natarajan, j.1. the petitioner, a former village karnam, has filed this petition under article 226 of the constitution of india for calling for the records of the government of tamil nadu (the fourth respondent) relating to g.o.ms. no. 5747, revenue department, dated 15th september, 1973 and issuing a writ of certiorari or any other writ, direction or order, to quash the said government order. this petition was heard by a division bench consisting of ramanujam and ratnavel pandian, jj. but, on account of the division bench doubting the correctness of the ratio in manickam v. state of tamil nadu w.a. no. 260 of 1975, dated 16-2-1976, the matter has been posted before this specially constituted full bench 'for an authoritative ruling on the point'.2. the petitioner was the village.....
Judgment:
ORDER

S. Natarajan, J.

1. The petitioner, a former village karnam, has filed this petition under Article 226 of the Constitution of India for calling for the records of the Government of Tamil Nadu (the fourth respondent) relating to G.O.Ms. No. 5747, Revenue Department, dated 15th September, 1973 and issuing a writ of certiorari or any other writ, direction or order, to quash the said Government Order. This petition was heard by a Division Bench consisting of Ramanujam and Ratnavel Pandian, JJ. But, on account of the Division Bench doubting the correctness of the ratio in Manickam v. State of Tamil Nadu W.A. No. 260 of 1975, dated 16-2-1976, the matter has been posted before this specially constituted Full Bench 'for an authoritative ruling on the point'.

2. The petitioner was the village karnam of Sevalur in Manapparai taluk in Tiruchirapalli District. In a disciplinary enquiry against him with reference to certain charges, the Sub- Collector, Karur (the first respondent) held the charges proved and awarded the punishment of dismissal. The petitioner failed in his appeal before the District Revenue Officer (the second respondent), but on further revision to the Board of Revenue (the third respondent), the findings on the charges were affirmed, but nevertheless, the petitioner's earlier record of good service was taken into consideration and the punishment was modified from one of dismissal to one of suspension for a period of three years. However, the fourth respondent, in exercise of its power under Board's Standing Order 156-A suo motu called for the relevant records and, after giving a show cause-notice to the petitioner, set aside the order of the third respondent and restored the order of dismissal originally passed by the first respondent. It is this order of the fourth respondent, viz., G.O.Ms. No. 5747, Revenue Department, dated 15th September, 1973 that is challenged in the writ petition on the ground that the fourth respondent, acting as a revisional authority, has no power to enhance the punishment.

3. In Manickam v. State of Tamil Nadu W.A. No. 260 of 1975, dated 16-2-1976, which is referred to in the order of reference an identical contention was raised and a Division Bench of this Court consisting of Veeraswami, CJ., and Suryamurthy, J., rejected that contention on the ground that the words, 'proportion to the gravity of the offence', would take in both enhancement as also reduction and there was no reason to think that the expression meant only reduction of the sentence or punishment. In the order of reference, the Division Bench has expressed its doubt as to the correctness of the ratio in the following terms:

Though the above Bench decision directly deals with the point in controversy and that decision is in favour of the contention put forward on behalf of the Government,, with respect, we are not prima facie inclined to accept the interpretation placed by the Bench on ground No. (iv) of Board's Standing Order 156-A as quite correct. The expression 'out of proportion' has always been understood as excessive and it has never been, as far as we are aware, used to denote inadequacy. It is true the main provision in Board's Standing Order 156-A enables the Government to annul, modify, reverse or remit for reconsideration the order of the Board of Revenue, but it does not contain any specific power of enhancement. The words, 'annul, reverse or remit' will not, by any stretch of imagination, include the power of enhancement. The question is whether the-expression 'modify' could include the power of enhancement.

The Division Bench then has considered the-definition of the word 'modify' in the Shorter Oxford English Dictionary and further given its opinion as to how the expression 'out of proportion' should be construed. In the words of the Division Bench, 'If the expression 'out of proportion' is taken to be synonymous with 'proportionate', then it is possible to say that enhancement could be permitted when condition No. (is) exists. But, we doubt very much whether the expression 'out of proportion' could mean 'proportionate' as has been held by the Bench. As already stated, the expression 'out of proportion' has always been understood as connoting an excess. The said expression cannot also be-understood as meaning 'disproportionate'- If the expression 'out of proportion' is given its literal meaning, it will mean that the Government can modify the order of the Board of Revenue only if it finds that the punishment meted out to the petitioner is excessive.'

4. Mr. R.G. Rajan, learned Counsel for the petitioner, sought to canvass before us that the view taken by the Division Bench in its. order of reference is the correct one. He-cited Rathnaswami Padayachi v. Mani Pillai (1959)1MLJ201 : 1959 LW 193 : ILR (1959)Mad 380, to-indicate the scope of Board's Standing Order 156-A and Nagarathnammal v. Ibrahim Saheb : AIR1955Mad305 , to point out that though the Board of Revenue and the Government-have undoubted power to superintend and also the power to frame rules and amend them from time to time in exercise of their power of superintendence, once a rule has been framed, the Board as well as the Government is bound by the very rule when it acts as a quasi-judicial tribunal and adjudicates on the rights of parties founded on that rule and the duty of the Board and the Government is to decide individual cases before it in accordance with the rules framed by itself and the limitations imposed by the rule in question should not be confused with the general right of the Board or the Government to frame or amend the rules. It is true that in Rathnaswami Padayachi v. Mani Pillai : (1958)1MLJ201 , it was held that though unquestionably the newly introduced Rule 156-A of the Board's Standing Orders vests the State Government with wide powers of revision, still under this rule, the Government is not empowered to interfere with findings of fact except in the special circumstances mentioned in the several clauses of the rule. Likewise, the latter decision in Nagarathnammal's case (1955) 2 M.L.J. 49 : I.L.R. (1955) Mad. 460(F.B.), is authority for the proposition that the rule-making power of the Government or the Board of Revenue will not entitle one or the other to traverse beyond the limits circumscribed by the rules already framed by it when it acts as a quasi-judicial tribunal and adjudicates on rights of parties found on the rules framed by it. These decisions, however, do not throw any light on the debate contained in the reference, because the impugned order does not offend the ratio laid down in either of these cases. On the other hand, this is a case where it is only in purported exercise of its powers under Clause (iv) of Board's Standing Order 156-A the fourth respondent has exercised its powers of suo motu revision and enhanced the punishment awarded to the petitioner, since, in its opinion, the punishment imposed by the third respondent was out of proportion to the gravity of the offence committed by him. For a proper appreciation of the controversy, it is necessary to extract Board's Standing Order 156-A (i) including the provisos to the sub-rule. The sub-rule reads as follows:

156-A : Powers of Revision :--(i) Notwithstanding anything contained in Stand-ing Order No. 156(3) and (4) the Government in respect of an order passed by the Board of Revenue and. the Board of Revenue in respect of an order passed by any authority subordinate to it, may either suo motu or on the application of an aggrieved party and for reasons to be recorded in writing, annul, modify, reverse or remit for reconsideration such order on any of the following, grounds namely:

(i) that the order is vitiated by illegality, material irregularity, obvious error resulting in miscarriage of justice or want of jurisdiction ; or

(ii) that the Board of Revenue or any authority subordinate to it, as the case may be, has acted in contravention of any existing instructions on the subject or has failed to exercise jurisdiction vested in it; or

(iii) that a punishment not contemplated in the rules is imposed on a village officer, for example, debarment from future appointment permanently or for a specified period; or

(iv) that the punishment imposed on a village officer is out of proportion to the gravity of the offence:

Provided that this Standing Order shall apply only to appointment or punishment of village headman or karnam:

Provided further that no order prejudicial to any party shall be passed unless he has had a reasonable opportunity of making his representations.

5. From the Standing Order extracted above it may be seen that the Board of Revenue, in respect of an order passed by any authority subordinate to it, and the Government, in respect of an order passed by the Board of Revenue, may exercise its powers of revision either suo motu or on the application of an aggrieved party. For reasons to be recorded in writing, the Board of Revenue or the Government, as the case may be, can annul, modify, reverse or remit for reconsideration the order under revision on one or more of the-grounds enumerated in Sub-clauses (i) to (iv). We are now only concerned with the Government or the Board of Revenue, as the case may be exercising its powers under Sub-clause (iv) and interfering with the punishment imposed on a village officer by the authority subordinate to the Board of Revenue or the Board of Revenue as the case may be. Undoubtedly, the power extends to the setting aside or the reduction of punishment imposed on a village officer. But the question is whether the power extends to enhancing the punishment. While the petitioner would contend that it does not, the learned Government Pleader appearing for the fourth respondent would say that it does. Can such a thing be done by the Board of Revenue or the Government, as the case may be, on the ground that it has got the power to modify the punishment imposed on the village officer, if the punishment is out of proportion to the gravity of the offence

6. The word 'modify' means, according to the Shorter Oxford English Dictionary (Third Edition), 'to limit, to moderate, to restrain, to assuage, to make less severe, rigorous, or decisive; to tone down, and to change'. However, in Chambers Twentieth Century Dictionary (New Edition 1972) the word 'modify' has been defined to mean, 'to determine the mode of; to change the form or quality of ; to alter slightly, to vary, to differentiate, to limit or qualify the sense of, to assess, decree, or award (a payment).' In Stroud's Judicial Dictionary (1973 Edition) (Volume XII) at page 1687 the word 'modification' has been described, in the following passage, to include within its ambit extension as well as constriction:

Modification '--e.g. of an Act of Parliament (see Interpretation Act, 1889) (c.63), Section 38(1)--may be an extension, as well as by a narrowing, of its provisions; ....

7. Before we consider the true and correct meaning to be given to the word 'modify' occurring in Boards Standing Order No. l56-A (i), we may usefully refer to some of the cases which have arisen directly with reference to the Standing Order in, question and some of the cases under other enactments where the word 'modify' has come to be construed. In Kanakasabai Chettiar v. The State of Madras and Ors. W.P. No. 4350 of 1968, dated 18-4-1969, Sadasivam, J., sustained the validity of an order of the Board of Revenue wherein it suo moto revised the order of the District Revenue Officer and restored the order of dismissal passed on a village officer by the Revenue Divisional Officer, after setting aside the order of the District Revenue Officer awarding a penalty of Rs. 100 besides seven years' suspension from service. The order of Sadasivam, J., was sustained by Veeraswami, CJ. and Varadarajan, J., in Writ Appeal No. 214 of 1969. The Division Bench held as follows:. .It is quite open to the Board, under the provision we have recited, to consider and take the view that the sum of Rs. 100 levied as penalty is out of proportion to the gravity of the offence. In interpreting the language, one should not approach with a preconceived notion that it applies only to reduction and not to enhancement. The language is broad enough to cover enhancement as well.

In M. Manickam v. The State of Tamil Nadu W.P. No. 559 of 1975, dated 13-2-1975, Ramanujam, J., one of the referring Judges, held that 'Clause (iv) of the said Standing Order (Board's Standing Order No. 156-A) enables the Board to interfere when the punishment imposed on a village officer is out of proportion to the gravity of the offence and the power of interference is not restricted to the exercise of it only when the person against whom the punishment is imposed seeks redressal on the ground the punishment is excessive'. The Judgment of Ramanujam, J., was confirmed by Veeraswami, CJ. and Suryamurthy, J. in Writ Appeal No. 260 of 1975 and the Division Bench held as follows:

Proportion to the gravity of the offence will take in both enhancement as also reduction. There is no reason to think that it means only reduction of sentence or punishment.

8. In V. Balasubramanian v. Secretary, Revenue Department, Fort St. George, Madras-9 and Anr. W.P. No. 2681, dated 2-11-1977, Mohan, J., followed the ratio in Writ Appeal No. 214 of 1969 and held that the District Revenue Officer, while exercising his suo motu powers of revision, was entitled to enhance the punishment, and the Government's refusal, in its impugned order, to decline to interfere with the order of the District Revenue Officer was perfectly in accordance with law. Our attention was also invited to S. Meyyanatha Pillai v. State of Madras W.P. No. 4875 of 1965, dated 4-11-1969, where Alagiriswami, J. (as he then was) had also construed the word 'modified' to entitle the revisional authority to enhance the punishment awarded to the village officer by the disciplinary or appellate authority. Thus, it may be seen that several Benches of this Court, Single as well as Division, have consistently taken the view that modification of punishment can be done on the basis of 'proportion to the gravity of the offence', and the power will take in both enhancement as also reduction.

9. Turning our attention, now, to other cases which have arisen under different enactments, we may refer to Stevens v. The General Steam Navigation Company (1973) 1 K.B. 890, the ratio of which has been approved by the Supreme Court in the next case we will be referring to. In this -case, the word 'modification' mentioned in the Interpretation Act, 1889, was held to be 'equally applicable... .to narrow or to enlarge the provisions of the former Act (the Workmen's Compensation Act, 1897)' In The Western India Theatre Ltd. v. Municipal Corporation of the City of Poona : AIR1959SC586 , the ratio in the above said cases was approved and it was held that the word 'modify' occurring in the Bombay District Municipalities Act, 1901 can involve an increase in the amount to be imposed, and not necessarily connoting reduction, alone. In Bunakur Coal Co., Ltd. v. The Union of India : [1962]1SCR44 , one of the questions that arose for consideration was whether a notification issued by the Central Government under the Goal Bearing Areas (Acquisition and Develop-ment) Act, 1957, amounted to a modification of the mining rights of the petitioners therein within the meaning of Article 31-A (1) (e) of the Constitution. In deciding the question, the Court referred to an earlier decision in In re, Delhi Laws Act, 19125 and quoted the following passage:

The meaning of the word 'modify' fell to be considered in In re, Delhi Laws Act, 1912, 1951 SCJ 527 : 1951 S.C.R. 747 : : [1951]2SCR747 at 793-4 AIR1951SC332, As pointed out in the opinion of Kania CJ., the word 'modify' means, according to Oxford Dictionary, 'to limit, restrain, assuage, to make less severe, rigorous or decisive; to tone down.' It also means 'to make partial changes in; to alter without radical transformation'. In Rowland Burrows 'Words and Phrases', the word 'modify' has, however, been defined as meaning, 'vary, extend or enlarge, limit or restrict. According to the learned Chief Justice, it has been held that modification implies an alteration. It may narrow or enlarge the provisions of the former Act.

10. Yet another case is Sampat v. J. and K. State : [1969]2SCR365 . In that case, the scope of Article 370 and the validity of a detention order passed under Section 13-A of the Jammu and Kashmir Preventive Detention Act fell for consideration. The Bench referred to the ratio laid down in Puranlal Lakhanpal v. The President of India : [1962]1SCR688 , and the passage therein which says that 'when the Constitution used the word 'modification' in Article 370(1) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir' and that 'in law, the word 'modify' may just mean 'vary' i.e., 'amend' and that 'in the context of the Constitution we must give the widest effect to the meaning of the word 'modification' used in Article 370(1) and in that sense it includes an amendment' and 'there is no reason to limit the word 'modification' as used in Article 370(1) only to such modifications as to do not make any 'radical transformation'. ' Following the ratio, the objections raised by the petitioners were rejected.

11. Periaswami Padayachi v. Government of Madras(1969) 2 M.L.J. 362 : : (1969)2MLJ362 , was a case under the Madras Regulation VII of 1828. Therein, the District Revenue Authority purported to act suo motu under the said Regulation and enhanced the punishment on a village officer from one of suspension to one of removal from office. The aggrieved village officer challenged the order and filed Writ Petition No. 1654 of 1964, but on Ramakrishnan, J., dismissing the petition, he. filed a writ appeal, Ananthanarayanan, C J. and Natesan, J., dismissed the writ appeal in limine hoding that the width of the language in Section 3, Clause (3) of the Regulation certainly included a power to enhance the punishment. Before a Full Bench of this Court, a question inter alia arose for consideration in Sivasankarasubramania Pillai v. R.D.O. Tuticorin(1968)2MLJ325 : ILR (1968)2Mad 12 : AIR 1968 Had 171, whether the District Revenue Officer had jurisdiction to interfere with the order of the Revenue Divisional Officer, under Section 7 of the Madras Hereditary Village Officers Act. It was contended that so far as the hereditary village officers are concerned, the proceeding of the subordinate officers (Sub-Collector, Deputy Collector and Assistant Collector) could be interfered with only in the manner provided under Section 23 of the Act and, consequently, in the absence of an appeal preferred to the District Collector under Section 23 against an order of suspension passed by the Subordinate Officer, the order became final and the District Collector had no revisional jurisdiction under Regulation VII of 1828. After an elaborate reference to various cases decided earlier, the Full Bench repelled the contention and held that the power of revision and superintendence is vested in the District Collector under the Regulation and it entitled him to enhance the punishment in appropriate cases. In the words of the Full Bench, 'The power of revision and superintendence is a different power altogether and that is vested with the discretion of the Collector with a view to ensure and maintain the efficiency, purity, morale and the discipline amongst the subordinate revenue officials. Both the powers can co-exist and there is nothing so inherently incompatible in the two powers as to make one hold that the existence of the one necessarily means the supersession of the other. The result of accepting such an extreme contention is that in various matters concerning the revenue officials, the decision of the Sub-Collector would become final virtually making him the head of the district. Taking, for instance, the very case in the writ petition, if the charge of misappropriation is proved, it will be absurd to hold that the District Collector cannot take a different view from that of the Sub-Collector as to the nature of the punishment to be imposed. If the punishment imposed is light, the party aggrieved may be quite prepared to suffer the punishment and will not care to prefer an appeal. But, the interests of the State-may demand that a more deterrent punishment, sometimes even dismissal or removal from service, may be called for. It is impossible to accept the contention that because-a statutory right of appeal to the aggrieved party is provided, the paramount interests of the State should suffer, the Collector having no power of superintendence and revision. The conferment of a right of appeal to the party aggrieved to the higher authority, at the same time reserving a suo motu power of revision in the higher authority is quite known and familiar conception...Such an overriding power of revision is conferred to provide and deal with situations than the interests of the party affected while administering the particular enactments.'

12. In V. Naidu v. Bellary Central Co-operative Stores Ltd. : AIR1967Kant203 , it was contended before a Division Bench of the Mysore High Court that the power of modification given to Government under Section 121 of the Mysore Co-operative Societies Act (XI of 1959) would not extend to enlarging the provisions of the Act. The-Division Bench repelled the contention since, in its view, it was contrary to the ratio laid down in Western India Theatres Ltd. v. Municipal Corporation Poona : AIR1959SC586 . The Division Bench also referred to the observations of Cooper, J., in Souter v. Souter (1921) New Zealand L.R. 716, extractedin Rowland Burrows' Words and Phrases Judicially Defined, (Vol. 3) at page 399. The passage is as follows:

One of the primary meanings of the word 'modify' is no doubt, 'to limit' or restrict, but it also means 'to vary' and there is authority that it may even mean 'to extend' or 'enlarge'.

In Sant Singh v. State of Jammu and Kashmir AIR 1959 J.& K. 35, a. Full Bench of the High Court of Jammu and Kashmir, while considering the validity of the inclusion of the Jammu and Kashmir Tenancy Act in the Ninth Schedule to the : Constitution by the President's order, held that the expression 'modification' also meant 'addition' and that the power to extend an enactment subject to modifications will comprehend the power to add certain provisions to that enactment and extend to the area concerned the enactment so added to.

13. From our reference to various cases, reported as well as unreported, it may be seen that not only in respect of cases arising under the Boards Standing Orders but also in respect of cases arising under various enactments, this High Court as well as the Supreme Court and the other High Courts have uniformly taken the view that the word modify need not, of necessity, be given a restricted or constricted meaning and, on the other hand, it is also capable of being construed as conferring power for enlargement of statutory provisions or enhancement of punishment.

14. Before adverting to Sub-clause (iv) of Clause (1) of Board's Standing Order 156-A and the collocation of the words therein, we may appositely refer to Board's Standing Order 156, as Board's Standing Order 156-A is in the nature of a non obstante provision for Board's Standing Order 156. It is enough if we refer only to Clauses (3) and (4) in Board's Standing Order 156, since they are the ones referred to in Board's Standing Order 156-A. Under Clause (3) of Board's Standing Order 156 a right of a single appeal is provided to claimants to the village office against departmental orders of appointment. But, in those cases where an order of appointment of the Divisional Officer is set aside by the Collector and another person is appointed, a further appeal to the Board of Revenue is provided for the person prejudicially affected by the Collector's order. Then comes Clause (4) which reads as follows:

4. Appeals against punitive orders :--(i) Headmen and Karnams:

(a) against orders imposing petty fines, no appeal will lie at all.

(b) Against orders imposing fines which are not petty in nature and against orders of suspension, only one appeal will lie and the appeal will be to the next higher authority.

(c) When, on an appeal filed under Clause (b) above, the punishment imposed by the Revenue Divisional Officer is enhanced by the Collector to one of removal or dismissal, an appeal will lie to the Board of Revenue against such enhancement of punishment.

(d) Against an order of removal or dismissal passed by the Revenue Divisional Officer, an appeal will lie to the Collector and a second appeal will lie to the Board of Revenue against the Collector's order on appeal confirming the order of the Revenue Divisional Officer. An appeal will, lie to the Board of Revenue also against an order of removal or dismissal passed by the Collector himself.

(Clause (ii) omitted as not relevant).

It is significant to note that in Sub-clause (c) there is reference to the enhancement of punishment imposed by the Revenue Divisional Officer, by the Collector to one of removal or dismissal. Now, this provision, in our opinion, has a bearing, when we construe the powers exercisable by the Board of Revenu or the Government under Sub-clause (MI) of clause(1)of Board's Standing Order 156-A. So construed, it may be seen that the power of enhancement of punishment by the Board of Revenue or the Government is exercisable independently of the power conferred on Collectors under Sub-clause (c) of clause 4 of Board's Standing Order 156 for enhancement of punishment. Then, coming Board's Standing Order 156-A itself, we have to point out that the word 'modify' confers powers on the Board of Revenue and the Government not only to limit or restrain or tone down the punishment imposed by the punishing authority or the appellate authority. but also vary the punishment which, in effect, means 'to enhance the punishment' also. It cannot be said that the collocation of the word 'modify' between the words 'annul' and 'reverse' would necessarily mean that what is contemplated is only a benevolent exercise of power in favour of the aggrieved village officer, and not a disciplinary power coupled with the powers of superintendence as to enhance the punishment in the interests of the State. Learned Counsel pointed out that the words used in Sub-clause (iv) are, 'punishment imposed is out of proportion to the gravity of the offence.' Mr. Rajan submitted that the words 'out of proportion' should go with the words 'punishment imposed' and should, therefore, necessarily mean severity of the punishment and not any leniency or inadequacy in the matter of punishment. We are not in the least persuaded by this argument, because the words 'out of proportion' will have reference not only to punishment imposed, but also to the gravity of the offence. So viewed, it would follow without question that the words 'out of proportion' occurring in the sub-clause would not only envisage cases of severe sentence, but also cases of lenient sentence. Then, again, we must point out that the second proviso which interdicts the Board of Revenue or the Government from passing an order prejudicial to any party without giving him reasonable opportunity to make his representations, is general in its terms and is not restricted only to Sub-clauses (i) and (ii). The placement of the proviso occurs after Sub-clause (iv) and not immediately after Sub-clauses (i) and (ii). If it was the intention of the rule-making authority that the second proviso should have application only to Sub-clauses (i)and (ii) then the proviso would have been placed immediately after Sub-clause (ii) and not after Sub-clause (to). It is a well-known rule in the interpretation of statutes that the main part of the section must not be construed in such a way as to render a proviso to the section redundant (vide : Maxwell on the Interpretation of Statutes, 12th Edition, page 38). Unless sub-clause. (iv) of Clause (1) of Board's Standing Order 156-A is construed in the manner we have construed, the second proviso will become otiose as far as Sub-clause (iv) is concerned. We see no reason or justification for rendering the proviso otiose when the Board has placed the proviso in such a manner as if it would have application for Sub-clause (iv) also.

15. Another factor which appeals to our mind for repelling the contention of Mr. Rajan is that if a restricted meaning is given to the word 'modify' occurring in Board's Standing Order 156-A(1) and the power exercisable by the Board of Revenue under Sub-clause (iv) is restricted only to mitigate the punishment, but not to enhance it, then as pointed out by the Full Bench in Sivasankarasubramania Pillai v. R.D.O., Tuticorin (1968) 2 MLJ 325 : I.L.R. 7(1968) 2 Mad 12(F.B.), the disciplinary authority or the appellate authority will virtually become the final arbiter in the matter of punishment and the Board as well as the Government, which have over-all powers of superintendence and have been conferred overriding powers under the Order, will virtually stand denuded in the matter of awarding appropriate punishment even in those cases where the offence committed by the village officer is of a grave nature and the punishment awarded by the punishing authority or the appellate authority is grossly disproportionate to the gravity of the offence and manifestly unmindful of the interests of the State.

16. Thus, on a consideration of the matter in its entire gamut, we are clearly of opinion that under Board's Standing Order 156-A the Board of Revenue or the Government, as the case may be, can, in exercise of its suo motu powers of revision, modify, the punishment imposed on a village headman or karnam in such a manner as to enhance the punishment in order to make the punishment proportionate to the gravity of the offence. As we have already stated, Board's Standing Order 156-A has two provisos. The first proviso restricts the operation of the Standing Order 'only to appointment or punishment of a village headman and. karnam'. The second proviso further enjoins that no order prejudicial to any party shall be passed unless he has had a reasonable opportunity of making his representations. Therefore, all that is required before a punishment imposed on a village headman or karnam is enhanced by the Board or the Government as the case may be, is that reasonable opportunity must be given to the concerned village officer for making his representations, as to why the punishment should not be enhanced. As long as this requirement is complied with, which also satisfies the principles of natural justice, we see no reason why the Board or the Government cannot enhance the punishment imposed on a village headman or karnam where the punishment imposed by the punishing authority or the appellate authority is out of proportion, or in other words, not in proportion, to the gravity of the offence.

17. In a last attempt to convince us of the correctness of the petitioner's contentions, Mr. R.G. Rajan, invited our attention to the Tamil Nadu Civil Services (Classification Control and Appeal) Rules and the Tamil Nadu Village Officers (Classification, Control and Appeal)|Rules, 1970. In the first of the Rules mentioned above, Rule 36 contains a specific provision empowering the State Government, the head of the department directry under the State Government, the appellate authority or any other authority specified in that behalf by the State Government, to either suo motu or otherwise, call for the records and review any order and thereafter, not only reduce or set aside, but also enhance the penalty imposed under the order, or impose any penalty where no penalty has been imposed. The latter Rules, which have been framed in 1970, have been made applicable to all village officers in the State except those in the city of Madras. Rule 3 therein states that the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules shall apply to the village officers subject to the modifications specified in the Rules following Rule 3. Rule 6 in the said Rules deals with revision, and sub-rules(4) and (4-A) relate to the revisional power of the Board of Revenue and the Government respectively. In both these rules it is stated that the revising authority has got the power, for reasons to be recorded in writing, to confirm, reduce, enhance or set aside the penalty imposed by the order under revision or impose any penalty where no penalty has been imposed or remit for reconsideration such order on any of the grounds specified in Sub-rule (5). Placing reliance upon the specific mention of the word 'enhance' in these Rules Mr. Rajan argued that it must be impliedly understood that the power of enhancement of punishment was not conferred under Board's Standing Order 156-A on the Board of Revenue or the Government, and it is to fill up the lacuna a specific mention has been made in the present Rules about the power to enhance the punishment. We are unable to countenance this argument. In our opinion, the power of enhancement was always included in the powers of modification exercisable by the Board and the Government under Board's Standing Order 156-A and what was implicit in the Standing Order has now been made explicit in the Rules framed in 1970.

18. With respect, therefore, we are unable to share the doubt expressed by the learned Judges of the referring Bench about the correctness of the ratio in M. Manickam v. State of Tamil Nadu W.A. No. 260 of 1975, dated 16-2-1976. We therefore affirm the correctness of the ratio laid down in M. Manickam v. State of Tamil Nadu W.A. No. 260 of 1975, dated 16-2-1976 and answer the reference accordingly. We direct the papers to be placed before the Hon'ble the Chief Justice for the writ petition being posted before the learned Single Judge dealing with writ petitions for consideration of other grounds, if any, raised by the petitioner in the writ petition.


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