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T.S. Kannan Vs. the High Court of Judicature of Tamil Nadu High Court Buildings Represented by the Registrar and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1982)1MLJ372
AppellantT.S. Kannan
RespondentThe High Court of Judicature of Tamil Nadu High Court Buildings Represented by the Registrar and anr
Excerpt:
.....the enquiry could be conducted by the borrowing authority through the second respondent can as well be agitated and gone into in the course of the enquiry itself before the second respondent. we have already referred to the fact that the appellant was recruited as a judicial second class magistrate under rule 5 read with rule 13 of the tamil nadu state magistrate service rules and the method of recruitment was 'recruitment by transfer'.the appointing authority in such cases is the government under rule 32 of these rules, the tamil nadu civil services (classification control and appeal) rules, hereinafter called rules, were made applicable to all the judicial second class magistrates recruited by transfer as well. rule 8 refers to the penalties that may be imposed for good and..........by transfer as provided under rule 5 read with rule 13 of the tamil nadu state magisterial service rules, and he was posted to gingee in the high court's proceedings, dated 21st december, 1973. on receipt, of certain complaints against him when he was serving as judicial second class magistrate, gingee, a secret probe was made by the vigilance cell, of the high court. in the meanwhile, he was transferred on 21st june, 1974 to triuva... in ramnad district. a detailed enquiry was then directed on the allegations of corruption and corrupt practices and while such enquiry was pending, the appellant was reverted back to his parent department and this was notified by the high court on 29th april, 1975. the detailed enquiry by the vigilance cell was completed and the report of the.....
Judgment:

V. Ramaswami, J.

1. The appellant was initially appointed as Assistant Public Prosecutor Grade-II, Chingleput District, in July, 1965, and later regularised by the Government in G.O. Ms. No. 3746, Home, dated 27th December, 1968. He was appointed as a temporary Judicial Second Class Magistrae, on his recruitment by transfer as provided under Rule 5 read with Rule 13 of the Tamil Nadu State Magisterial Service Rules, and he was posted to Gingee in the High Court's proceedings, dated 21st December, 1973. On receipt, of certain complaints against him when he was serving as Judicial Second Class Magistrate, Gingee, a secret probe was made by the Vigilance Cell, of the High Court. In the meanwhile, he was transferred on 21st June, 1974 to Triuva... in Ramnad District. A detailed enquiry was then directed on the allegations of corruption and corrupt practices and while such enquiry was pending, the appellant was reverted back to his parent department and this was notified by the High Court on 29th April, 1975. The detailed enquiry by the Vigilance Cell was completed and the report of the Vigilance Cell was received by the High Court on 18th September, 1975. During; such detailed enquiry, 32 witnesses were enquired by the Special Officer, Vigilance Cell and their statements were recorded on 16 specific instances of corruption and corrupt practices alleged against the appellant and one Sheik Hyder, Copyist in the Judicial Second Magistrate's Court, Gingee, who is the fourth respondent in the writ petition. The High Court, after consideration of the report and other evidence, by an order dated 3rd January, 1976, directed a departmental enquiry to be conducted by the District and Sessions Judge of South Arcot at Cuddalore, and he was asked to submit his findings. On 9th August, 1976, the Enquiring Officer framed as many as 24 charges against the appellant and called upon him to submit his written explanation. He was also required to fill up the questionaire form enclosed therewith and send it along with his written statement. At that stage, the appellant filed a petition before the Registrar of this Court raising a preliminary objection to the departmental enquiry ordered by the High Court on the ground that since he had been reverted to his parent department and posted as Assistant Public Prosecutor Grade II, Poonamallee, he was no longer in the service as Judicial Second Class Magistrate and the High Court or the District Judge of South Arcot, who is directed to enquire into the matter, has no jurisdiction to enquire into the alleged corruption and corrupt practices. In this preliminary objection petition he has also raised two other contentions as preliminary objection itself, one to the maintainability of the proceedings on the ground that the High Court had already waived its jurisdiction, if any by the order of reversion to his parent department, and also that a joint enquiry along with his copyist could not be held, This objection petition was sent to the District Judge of South Arcot, who was holding the departmental enquiry, for disposal. The preliminary objection was overruled by the disciplinary authority on the ground that the High Court had directed him only to enquire and submit his finding to the High Court and that therefore, the appellant was required to submit his written statement. He was also informed that if he does not submit his written statement, it will be presumed that he had no defence to offer against the charges and further proceedings will follow. At this stage, the appellant filed W.P. No. 1635 of 1977 in this Court praying for the issue of a writ of prohibition prohibiting the enquiring officer from proceeding with the departmental enquiry relating to his case and concerning the appellant. This writ petition was dismissed by a learned Single Judge observing that:

The question as to whether the enquiry could be conducted by the borrowing authority through the second respondent can as well be agitated and gone into in the course of the enquiry itself before the second respondent.

and that therefore, there was no necessity to issue a writ of prohibition prayed for. Obviously, the learned Judge overlooked the fact that already the departmental Enquiring Officer had overruled his preliminary objection, and it is probably for those reasons this writ appeal has been admitted by the First Bench. Even so, we are unable to agree with the learned Counsel for the appellant that the High Court had no jurisdiction to direct an enquiry into the allegations on the ground that the appellant had been reverted to his parent department. We have already referred to the fact that the appellant was recruited as a Judicial Second Class Magistrate under Rule 5 read with Rule 13 of the Tamil Nadu State Magistrate Service Rules and the method of recruitment was 'recruitment by transfer'. The appointing authority in such cases is the Government under Rule 32 of these Rules, the Tamil Nadu Civil Services (Classification Control and Appeal) Rules, hereinafter called Rules, were made applicable to all the Judicial Second Class Magistrates recruited by transfer as well.

2. The learned Counsel for the appellant relied strongly on Rule 16 of the Rules in support of his contention that the rules contemplate an enquiry by the borrowing authority only during the period when a delinquent was in their service and once he is reverted to his parent department, the borrowing authority, shall have no power either to enquire or impose any punishment. Rule 16 of the Rules as it originally stood at the relevant time, reads as follows:

16. Where, a person to he punished has been lent to the punishing authority.-

(i) the power to impose the penalty of compulsory retirement or removal or dismissal, shall not lie with any authority other than the lending authority; the borrowing-authority shall in a case where it considers that the punishment of compulsory retirement, removal or dismissal should be imposed, complete the enquiry and revert the person concerned to the lending authority for such action as that authority may consider necessary:

Provided that the provision in this clause requiring the reversion of the person concerned to the lending authority shall not apply where the person has been lent by one department to another and both the departments are under the same administrative authority; and

(ii) Unless in any case it be otherwise provided by specific orders by the Governor of Tamil Nadu the punishing authority shall consult the lending, authority before imposing any lesser penalty and in the case of suspension shall report forthwith to the lending authority the circumstances lending to the imposition of that penalty.

The Explanation to this section, which is unnecessary is omitted.

3. It may be seen from a reading of this rule that the words 'punishing authority' referred to in the beginning of this rule is the borrowing authority or the High Court in this case. Rule 16 as such deals with the power to impose the penalties referred to therein. If the penalty to be imposed is one of the major penalties, viz., compulsory retirement, removal or dismissal, the power to impose such penalty shall lie only on the lending authority viz., the Government in this case. If the borrowing authority considers that the major punishment is called for, after completion of the enquiry, the person concerned shall be reverted to the lending authority for such action as that authority may consider necessary. But, in the case, of punishments other than major punishments, the borrowing authority itself can impose those punishments, the only limitation being that the lending authority should be consulted before imposing any such penalty. What is relevant in this connection is that Rule 16 itself contemplates that the disciplinary authority in such cases is the borrowing authority. Only if any of the major punishments is called for, the borrowing authority was required to complete the enquiry and revert the person concerned to the lending authority for such action as that authority may deem necessary.

4. The learned Counsel for the appellant, however, contended that the fact that Clause 1 of Rule 16 requires a borrowing authority in cases where the major punishments are to be imposed, to complete the enquiry and revert the person concerned to the lending authority shows that the enquiry itself should have been completed before such revision is made and if once a reversion had already taken place no enquiry either could be initiated with reference to any misconduct committed during the peroid before reversion nor an enquiry, even if it had already been initiated could be completed if once a reversion had taken place. We are unable to agree with this contention of the learned Counsel for the appellant. It is true, Clause 1 of Rule 16 refers to completion of enquiry and reversion. The word 'complete the enquiry and revert the person concerned' in Clause 1 of Rule 16 need not necessarily be understood conjunctively and the 'and' having regard to the context in our opinion could read as 'or'. This is specially for the reason that Rule 16 will have to be understood and interpreted in the light of other rules relating to disciplinary proceedings. Rule 8 refers to the penalties that may be imposed for good and sufficient reason. Rule 9(c)(1) states that the Governor or any other authority empowered by him by general or special order may : (i) institute disciplinary proceedings against any Government servant; (H) direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in Rule 11. Rule 11(a) deals with the authorities competent to impose punishments. In the case of members of the Tamil Nadu State Judicial Service and the Tamil Nadu State Magisterial Service, the authority competent to impose the penalties specified in items (i), (in), (iv), (v) and (ix) in Rule 8 shall be the High Court. Rule 15, which is another relevant provision, may be fully extracted and that reads as follows:

15 (a) Where, on promotion or transfer, a member of a service in a class, category or grade is holding an appointment in another class, category or grade thereof or in another service state subordinate service, no penalty shall be imposed upon him to respect of his work or conduct before such promotion or transfer except by an authority competent to impose, the penalty upon a member of the service in the latter class, category, grade or service as the case may be.

(b) Where a person has been reverted or reduced from a State to a Subordinate Service, or from one service to another, or from one class, category or Grade of a service to another class category or grade thereof, to penalty shall be imposed upon him in respect of his work or conduct while he was a member of the service, class, category or grade, as the case may be, from which he was reverted or reduced except by an authority competent to impose the penalty upon a member of such service, class, category or grade, as the case may be.

5. As per this rule, no penalty can be imposed upon a person recruited by transfer in respect of his work or conduct before such transfer except by the parent department. Even in the case of a reversion, the borrowing authority shall have no power to impose the penalties even in respect of his work and conduct while he was in the service of the borrowing authority. On the basis of these rules, though it is possible to argue that the penalty as such cannot be imposed except by the authorities mentioned in rules IS and 16, in view of the case of recruitment by transfer, the borrowing authority is also authorised to institute disciplinary proceedings, we have to hold that the High Court also has got jurisdiction to initiate disciplinary proceedings, hold an enquiry and give a finding even in respect of a person who has already been reverted provided the allegations were in respect of his work and conduct before such reversion. In fact, the High Court has directed the Enquiring Officer to hold the departmental enquiry and submit his findings to the High Court in so far as the appellant is concerned. The decision of this Court by Koshal, J., as he then was, in W.P. No. 3118 of 1972 related to a case of authority of the borrowing department to impose penalties after the concerned officer was reverted and it did not relate to the question of jurisdiction of the borrowing authority to hold the enquiry itself. Therefore, that decision is not applicable.

6. In the result, the writ appeal s dismissed though for different reasons than that mentioned by the learned Single Judge. There will be no order as to costs.


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