@JUDGMENTTAG-ORDER
N. Paul Vasanthakumar, J.@mdashPetitioner seeks to quash the impugned order of the first respondent dated 25.1.1995 and to direct the respondents to permit the petitioner to retire on superannuation on the afternoon of 30.6.1992.
2. The brief facts necessary for disposal of the writ petition are that the petitioner was appointed as Junior Assistant in the Registration Department in 1953 and he was promoted as Assistant in the year 1969 and further promoted as Sub-Registrar, Grade-II in the year 1977 and again promoted as Sub-Registrar, Grade-I in the year 1984. Petitioner while working as Sub-Registrar, Tiruthangal, he was trapped on the ground that he received Rs. 20 as bribe. Even though no amount was recovered from his person, a Rs. 10 note was found in the cash box containing legitimate collection of fees for the day in a tainted condition. Petitioenr was arrested and enlarged on bail. A charge sheet was issued by the Tribunal for disciplinary proceeding in DE.162/88 dated 1.12.1989. On the same day, another charge was also framed. A fresh charge memo contained two charges. The first charge relates to trapping, i.e., receipt of Rs. 20 as bribe. The second charge is that the petitioner actuated by corrupt motive and in abuse of his position, while working as Sub-Registrar, Tiruthangal, had committed gross misconduct and misdemeanour and failed to maintain absolute integrity and devotion to duty by demanding and receiving illegal gratification. The additional charge framed was that while the petitioner was working as Sub-Registrar, Tiruthangal, he along with another Assistant and Junior Assistant in the same office, conniving with each other on 23.9.1987 demanded and received illegal gratification of a total sum of Rs. 150/- from several persons named and failed to maintain absolute integrity and conducted in a manner unbecoming of a Government Servant. An enquiry was conducted and the Enquiry Officer found only one charge in the first charge memo as proved and found the other charges as not proved. Based on the finding of the Enquiry Officer, in respect of the Charge No. 1, that is, receipt of tainted money of Rs. 20/-, the Inspector General of Registration removed the petitioner from service on the date of his superannuation. Petitioner filed appeal against the said order before the respondent herein, which was also rejected in G.O.(2D)No.2 Commercial Taxes and Religious Endowment Department dated 25.1.1995 and the said order is challenged in the above original application, which is now transferred and numbered as the above writ petition.
3. The main ground of attack made in the writ petition is that the appellate authority has not followed Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
4. In view of the said specific ground taken in the writ petition, the learned Counsel for the petitioner submitted that the appellate authority being a statutory authority, is bound to follow the provisions contained in Rule 23 of the rules and the same having not been followed the said order is unsustainable.
5. Petitioner has not challenged the order of the original authority in this writ petition. However, having regard to the fact that the appellate authority''s order is under challenge, I am inclined to go into the order passed by the appellate authority.
6. Heard the learned Counsel for the petitioner as well as learned Additional Government Pleader and perused the order passed by the appellate authority.
7. The operative portion contained in paragraph 3 states that the view of the Tamil Nadu Public service Commission was sought for and based on the suggestion given by the Tamil Nadu Public Service Commission, the Government decided to reject the appeal, except stating that the punishment is quite reasonable and cannot be considered as excessive for the proven charge of demand and acceptance of bribe.
8. Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, reads as follows,
23(1) In the case of an appeal against an order imposing any penalty specified in Rule 8 or 9 appellate authority shall consider--
a) Whether the facts on which the order was based have been established;
b) Whether the facts established afford sufficient ground for taking action; and
c) Whether the penalty is excessive, adequate or inadequate and pass orders:
i) confirming, enhancing, reducing, or setting aside the penalty; or
ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;
Provided that--
i) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clauses (iv), (v)(c), (vi), (vii) and (viii) of Rule 8 and an inquiry under Sub-rule (b) of Rule 17 has not already been held in the case, the appellate authority shall, subject to the provisions of Sub-rule (c) of Rule 17, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Sub-rule (b) of Rule 17 and thereafter, on a consideration of the proceedings of such inquiry make such orders as it may deem fit;
(ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clauses (iv), (v)(c), (vi), (vii) and (viii) of Rule 8 and an inquiry under Sub-rule (b) of Rule 17 has already been held in the case, the appellate authority shall make such orders as it may deem fit; and
(iii) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of Sub-rule (b) of Rule 17 of making representation against such enhanced penalty.
From the perusal of the above said rule, it is clear that the appellate authority is bound to consider as to whether the facts on which the order was passed and have been established, whether sufficient ground is made out for taking action, whether the punishment imposed is excessive or adequate or inadequate and only thereafter the appellate authority is empowered to confirm, enhance or reduce or set aside the penalty, or remit the matter to the original authority.
9. In the decision reported in
8. Coming to the second question as to whether the Board of Revenue has acted in accordance with Rule 23 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, we feel that the Board of Revenue has not kept in mind the requisites necessary, under Rule 23. The order of the Board of Revenue dismissing the appeal has been extracted above. The order does not give any reason as to why it confirmed the order of dismissal except saying that it did not see any reason to interfere with the order of the Collector. We are of the view that having regard to the language used in Rule 23, the dismissal of the appeal by the Board of Revenue is not a proper disposal as contemplated by Rule 23. Rule 23 provides as to what the appellate authority should do while considering the appeal filed by a delinquent officer against the penalty imposed on him. Rule 23(1) gives a mandate to the appellate authority to consider: (a) whether the facts on which the order was passed have been established; (b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate. Thus it is clear from the perusal of Rule 23 that the appellate authority is enjoined to consider whether the facts on which the order of dismissal was passed had been established and the facts established afford sufficient grounds for taking action and whether the penalty is excessive or adequate. Rule 23 directs the appellate authority to consider certain matters before passing the appellate order. The order of the appellate authority must therefore ex facie show that the matters referred to in Rule 23 have been considered by the appellate authority before it passed its order. In this case, the order of the appellate authority merely says that it sees no reason to interfere with the order of the Collector and it does not indicate that it took all the matters referred to in Rule 23 into consideration before rejecting the appeal. Obviously, the appellate authority the Board of Revenue in this case, appears to have overlooked the criteria referred to in Rule 23, as otherwise, it would have at least referred to the relevant matters contained in Rule 23 in its order. Dealing with this ground of attack, Mohan, J., has stated that according to the recent trend of opinon, if the appellate authority confirms the order in appeal, the appellate authority need not give reasons. It may be that in a case where there is no statutory provision dealing with the exercise of power by the appellate authority we have to fall back to the general principle as to whether the appellate authority is found to give reasons for his affirmation of the order of dismissal; but where the power of the appellate authority is circumscribed by a statutory provision such as Rule 23 as in this case, the appellate authority should act within the confines of that rule and he cannot pass an order arbitrarily without considering the matters referred to in Rule 23. We are therefore of the view that the order of the Board of Revenue, dated 4th September, 1976, stands vitiated for violation of Rule 23. On this ground, the order of the Board of Revenue which confirms the orders of dismissal passed against the appellant will stand quashed and the Board of Revenue has to pass a fresh order on the appeal filed by the appellant which should be treated as pending.
9. As the Government order merely confirmed the order of the Board of Revenue and as we have quashed the order of the Board it will also stand set aside. It is therefore unnecessary for us to go into the third question as to whether the Government while acting in revision is bound to consult the Tamil Nadu Public Service Commission under Rule 36 of the Tamil Nadu Public Service Commission Regulation.
10. Another Division Bench of this Court in the decision reported in 2004 3 LW 32 (M. Nagarajan, R. Muthuswamy and V. Sedhu v. The Registrar, High Court, Madras-600 104 and the Principal district Judge, District Court, Coimbatore-641 018) took a similar view and held that the appellate authority is bound to follow the provisions contained in Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and remitted the matter to the appellate authority.
11. In view of the above said rule and having regard to the judgments of the Division Bench cited supra, I am of the view that the appellate authority has not passed the impugned order in compliance with Rule 23 and therefore the impugned order passed in G.O.(2D)No.2, dated 25.1.1995 is set aside with a direction to the first respondent to follow Rule 23 of the Tamil nadu Civil Services (Discipline and Appeal) Rules, and pass fresh orders on merits within eight weeks from the date of receipt of copy of this order. It is made clear that the merits of the contentions raised by the petitioner in this writ petition is not decided in any manner in this order.
The writ petition is allowed with the above direction. No costs.
