Neelakandan v. The Secretary to the Govt

ORDER This writ petition has been filed against the impugned order of dismissal from service issued by the second respondent in Se.Mu.Na.Ka.No.2213/2013/L3 dated 19.07.2015 and consequential impugned orders passed by the first respondent in G.O.(Pa).No.163 dated 08.11.2017 and G.O.(Pa) No.49 dated

10.05.2018.

¶2The brief facts are that the petitioner had joined service on 17.07.1989 as Junior Assistant in the Office of the Assistant Commissioner, HR&CE at Tirunelveli on compassionate grounds. Subsequently, he was posted as an Executive Officer Grade IV in Arulmighu Kalyana Sundareswar Temple, Avaniapuram, Madurai South, then posted at several places and finally, he was transferred to Arulmighu Siddi Vinayagar Thirukkovil, Vadakovai at Coimbatore. The Joint Commissioner, HR&CE, Madurai, has suspended the petitioner from service vide proceedings dated 21.01.2013 in Se.Mu.Na.Ka.No.11729/2012/E.3 and on the same day charge memo was also issued for 11 counts of charges. It was mainly alleged that when the petitioner was working at Gurunathar Swamy Temple at Ammayanaickanoor, he had given "No Objection Certificate" on

16.11.2010 for the lands belonging to Ammayanaickannoor Muthumariamman temple comprised in S.Nos.604/1 and 604/2 in Oruthattu Village, Nilaikottai Taluk, Dindigul District for alienation to some private persons. After receipt of the said charge memo, the petitioner has submitted detailed explanation dated

18.04.2013 stating that he never gave any no objection certificate for alleged alienation and he specifically stated that the same is a forged document and his signature has also been forged on the said document. On the basis of such forged "No Objection Certificate", the document was registered in favour of one Thangapandian and mutation was carried in revenue records. Thereafter, an enquiry officer was appointed by the second respondent and the Enquiry Officer had submitted his report on 26.10.2013 vide Na.Ka.No.122/2013/A Tha, stating all the 11 charges are proved. Pursuant to which, the second respondent issued a second show cause notice in Na.Ka.No.2213/2013 L3 dated 29.10.2013 and the petitioner has submitted a detailed explanation dated 28.11.2013 denying the findings of the Enquiry Officer. Without considering the same, the second respondent passed the impugned order vide his proceedings in Na.Ka.Se.Mu.Na. Ka.No.2213/2013 dated 19.07.2015, whereby the petitioner was dismissed from his service. Aggrieved over the same, the petitioner preferred statutory appeal before the first respondent on 31.08.2015 and the same was dismissed by the first respondent in G.O.(pa)No.163 dated 08.11.2017. As against the same, the petitioner filed a Review Petition before the first respondent on 22.12.2017 and the same was also dismissed by the first respondent in G.O.(pa)No.49 dated

10.05.2018. Therefore, the petitioner herein has come forward with this present writ petition.

¶3The learned counsel for the petitioner submitted that the orders passed by the first and second respondents are not in accordance with law. The petitioner was not given any reasonable opportunity to defend his case. There is no merit in the findings of the Enquiry Officer and the Disciplinary Authorities. Further, he would submit that the disciplinary proceedings against the petitioner were initiated only on the basis of the alleged "No Objection Certificate" to have been issued by the petitioner. Only on the basis of a xerox copy of alleged "No Objection Certificate", the whole proceedings were initiated. Even though the petitioner made a specific request for the supply of original copy of the "No Objection Certificate" during the course of enquiry on 07.10.2013, the same was not at all furnished. The said fact was projected in the enquiry report given by the Enquiry Officer. As far as the first charge is concerned, the findings of the Enquiry Officer would clearly reveal that the Sub Registrar has given a in his letter No.26/2013 dated 14.06.2013, which was marked as Ex.14 in the report, wherein the Sub Registrar clearly stated that no document was registered based on the "No Objection Certificate" alleged to have been issued by the petitioner. Further, insofar as the second charge is concerned, as per the letter given by the Tahsildar dated 29.06.2013 marked as Ex.P.4, it is stated that patta was changed in favour of Thangapandian not based on the alleged "no objection certificate" issued by the petitioner. As per the report of the Circle Inspector of HR & CE Department, Nilakottai in his proceedings in O Mu 245/2015 dated 04.01.2013, it was stated that the said property was registered on the basis of a Will which was marked as Ex.5 and Ex.6 and Ex.7. The lands in survey Nos.604/1 and 604/2 to an extent of 8 Acres 37 cents which is standing in the name of Jeyasakthivel. A certificate has been issued by the Village Administrative Officer in favour of Jeyasakthivel on 10.08.1998 marked as Ex P12, based on which, the document has been registered. Further, he has also given auction notice and other documents which are marked as Exs.9 to 12. These exhibits are against the department and in favour of the petitioner.

¶4The second respondent had predetermined to punish the petitioner and issued the charge memo based on the communication sent by the District Collector to the first respondent in Na Ka No.37549/2012 A4 dated 20.12.2012. It is pertinent to note that the order passed by the first respondent is without any jurisdiction and the same is violative of Rule 9A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. As per the rule, it is only Government which is the competent authority to initiate the disciplinary action against the petitioner as well as others who belongs to different Departments. In the instant case, there are three officials and all are belonging to different departments namely HR & CE, Revenue and Registration Department are involved.

¶5The first respondent being an appellate authority passed the impugned order accepting the recommendations of TNPSC vide his letter No. 2306/DCT/U1 /2016 dated 16.09.2016 and report of forensic department in Doc.No.182/17 dated 19.07.2017 pertaining to petitioner signature in the alleged "No Objection Certificate". The said orders referred to as per G.O.Ms.No.163 dated 08.11.2017 wherein the orders were shown as references 5 and 6. The said documents were not furnished to the petitioner at the time of hearing of the appeal. In this circumstances, it is pertinent to note that TNPSC report alone was furnished at the time of rejecting the appeal of the petitioner and Forensic report was not furnished to the petitioner. Therefore, the non-furnishing of necessary documents to the petitioner is violating of principles of natural justice. Therefore, the orders passed by the first and the second respondents are liable to be set aside and the petitioner prayed to allow the writ petition.

¶6The learned Government Advocate appearing for the respondents submitted that the petitioner was appointed as Junior Assistant on compassionate ground in the year 1989. Subsequently, on transfer of service, he was appointed as Executive Officer Grade-IV and then promoted as Executive Officer Grade III. He would further submit that the District Collector, Dindigul has sent a report to the Secretary to Government, Tourism Culture and Religious Endowments Department in Rc.No.37549/12/B4, dated 20.12.2012, wherein he has stated that the land in Survey No.604/1 measuring 4.74 acres and 3 acres in Survey No.604/2 in Oruthattu Village belongs to Arulmighu Gurunathaswamy Temple and the said land was settled in the name of the temple under Estate Abolition Act, TD No.

¶417Under Tamil Nadu Inam Abolition Act, the Inam was settled in the name of the temple and Patta No.5 granted in the name of Gurunathaswamy temple represented by its present Manager. Further, the Patta No.403 granted in the name of the Gurunathaswamy temple under UDR Scheme, but in the 'A' Register, it was wrongly printed as "Gurunathaswamy Konar". The petitioner herein has given "No Objection Certificate" stating that the said lands are not belonging to the HR & CE Department and no objection to register the sale deeds. Based on the said No Objection Certificate given by Thiru.Neelakandan, the property was registered in the name of one Thangapandian and patta was also changed in his name. Therefore, the Collector has requested to initiate disciplinary proceedings against the petitioner. It is further submitted that there are 11 charges framed against the writ petitioner by the Joint Commissioner, Madurai vide Pro.RC.No. 11729/2012/C3 dated 21.01.2013 and the petitioner was placed under suspension. The petitioner had submitted explanation on 18.04.2013. Thereafter, an Enquiry Officer was appointed by the Commissioner in Pro.Rc.No.2213/2013/L3 dated

16.05.2013. After completion of the enquiry, a copy of the enquiry report was furnished to the petitioner and he was requested to submit his explanation on the report of Enquiry Officer vide Commissioner's Rc.No.2213/2013-L3 dated

29.10.2013. The petitioner has submitted further explanation on 28.11.2013. Thereafter, the Sub Registrar, Nilakottai appeared before the Commissioner and had given statement that the original files relating to the registration of the document was not available in the office. After verifying all the documents, the Commissioner has passed final order in the disciplinary proceedings by imposing punishment of dismissal from the service vide Pro.Rc.No.2213/2013/L3 dated

19.07.2015. The petitioner has preferred an appeal before the first respondent and the same was confirmed and correctly dismissed the appeal preferred by the petitioner. Therefore, the respondents prayed to dismiss the writ petition.

¶7Heard Mr.M.Ramsundar Vijayraj, the Learned Counsel appearing for the petitioner and Mr.M.Senthil Ayyanar, Government Advocate, the Learned Counsel appearing for the respondent and perused the materials available on record.

¶8The first contention that was raised by the petitioner is that the charge memo contains 1 to 4 documents. But the enquiry officer had collected 5 to 15 documents during the course of enquiry and has relied on the same, but the said documents was not served to the petitioner. The respondents have not denied this in their counter. Therefore, this Court is of the considered opinion that there is violation of principles of natural justice.

¶9The next contention is that the petitioner has sought to produce the original of the alleged "No Objection Certificate" and the same was not furnished. Moreover, the respondents had compared the signature based on the photo copy of the alleged certificate. Even the forensic report also states that the signature was compared based on the photo copy of the alleged certificate. It is settled principle that any signature ought to be compared with the original and photo copy of the alleged "No Objection Certificate" is inadmissible evidence. It is pertinent to state herein that the Tamil Nadu Public Service Commission has also opined that photo copy is compared and it is not proper. But the respondents had relied on the alleged photo copy of the certificate and had come to the conclusion, therefore this Court is of the considered opinion that the basis of the enquiry itself is erroneous.

¶10The next contention of the petitioner is that there are allegations that the patta was issued based on the alleged "No Objection Certificate" and sale deed was registered in the name of one Thangapandian. But the government had not initiated any action against the officials in Revenue Department and Registration Department. The TNPSC has also taken this aspect and had opined and recommended the government to conduct enquiry against all persons and thereafter take decision on the appeal. The relevant portion of the TNPSC opinion is extracted hereunder: ",t;tHf;fpy; tH';fg;gl;Ls;s ,Wjp Mizapy; tprhuiz mwpf;if Vw;Wf;bfhs;sg;gl;L md;dhh; kPjhd 11 Fw;wr;rhl;LfSk; epU:gzkhfpd;wbjdj; bjhptpj;J gzpawt[ (dismissal from Service) vd;w jz;lid tH';fg;gl;Ls;sJ/ W.P.(MD)No.16157oofo2018 jpU/m/eyP fzl; d; muRf;F bra;J bfhz;Ls;s 31/08/2015 ehspl;l nky;KiwaPl;oy; jhd; bfhLj;jjhf brhy;yg;gLk; jilapd;ik rhd;wpd; xspefypy; cs;s xg;gk; jd;DilaJ ,yi; y vd;Wk; bghaa; htzk; (forgery) bra;J rhd;W mspf;fg;gl;Ls;sJ vd;Wk;. ,r;rhd;wpy; cs;s ifbahg;gj;jpd; cz;ikj; jd;ikapid chpa Jiwa[ld; bjhlh;g[ bfhz;L mwpe;jpUf;f ntz;Lbkd;Wk;. ,e;j tHf;fpy; rk;ge;jg;gl;l ntW gzpahsh;fs; vth; kPJk; eltof;if vLf;ftpy;iy. mjw;fhd fhuzKk; mwpatpy;iy vd;Wk;. vd;idna Mjhuj;Jld; epU:gpf;ff; nfhUtJ rhpayy; vd;Wk;. xspefy; itj;J eltof;if vLf;ff;TlhJ vd ePjpkd;w Mizfs; ,Ue;jnghJk; ,jidf; fUj;jpy; bfhs;shky; Fw;wr;rhl;Lfs; epU:gpf;fg;gl;Ls;sjhf bjhptpj;Js;shh;/ nky;KiwaPl;lhsh; jpU/m/ePyfz;ld; gj;jpug; gjptpw;F Mjhukhf tH';fpa[s;s jilapd;ik rhd;W czi; kahdJjhdh vd rhpahf Jiwapduhy; Ma;t[ bra;ag;gltpyi; y/ mry; rhd;W fpilf;fg; bgwhj epiyapy; xsp efypid mog;gilahff; bfhz;L nky;KiwaPl;lhsUf;F bgUe;jz;lidahd 'gzpawt['o (majoropunishment) tH';fg;gl;Ls;sJ/ nkYk; tprhuiz mYtyh; mwpf;ifapy; bjhptpj;Js;s ghpe;Jiuapd;go ,k;Kiwnfl;oy; gj;jpug;gjpt[j; Jiw kw;Wk; tUtha;j; Jiwapy; bjhlh;g[ila egh;fs; kPJ vd;d eltof;if vLf;fg;gl;lJ vd;gJ Fwpj;J tptu';fs; VJk; nfhg;g[fspy; ,yi; y/ ,t;tHf;fpy;. gj;jpug;gjpt[j; Jiw. ,e;J rka mwepiya Ml;rpj;Jiw. tUtha;j;Jiw vd K:d;W Kf;fpa Jiwfs; nrh;e;jpUg;gjhy;. nkw;go xt;bthU JiwapYk; KGikahd bjspthd tprhuiz bra;J nghjpa Mjhu';fisg; bgw;W ,k;nky;KiwaPl;od; kPJ KobtLf;FkhW njh;thizak; muirf; nfl;Lf; bfhs;fpwJ"" Even though it is only opinion of TNPSC and it is not mandatory, but it would indicate that the enquiry is biased. The biased enquiry is further confirmed when the respondents had not initiated any action against the said Thangapandian who had transferred of land. Infact the respondents had not even initiated any action to retrieve the land from the said Thangapandian. Therefore, this Court is of the considered opinion that the enquiry is biased and liable to be set aside.

¶11The next contention of the petitioner is that the petitioner had raised various grounds in the memorandum of appeal, but none of the grounds were considered by the 1st respondent. On perusal of the appellate order dated

08.11.2017, it is seen that the appellate authority had narrated various proceedings and then had passed one paragraph order and there is no discussion of any grounds. Therefore, this Court is of the considered opinion that the impugned order dated 08.11.2017 is a non-speaking order.

¶12Further the records indicate that the entire allegation is based on the alleged "No Objection Certificate", except this no other evidence are available. The Registration Department had stated that as per Land Register, in the year 1956, the disputed survey number was changed in the name of Arulmigu Gurunathasamy Konar. The Registration Department had also stated the document was registered based on the Will and not based on the alleged "No Objection Certificate". Also categorically stated as per their records the lands in question are not noted as temple property. When the land in question is not noted as temple property in the registration department, then the question would never arise for "no objection certificate". Hence the "no objection certificate" theory seems highly improbable. From these facts it would be evident that the scope of the enquiry ought to be widened and the real mischief ought to be rectified.

¶13The learned Government Advocate for the respondents vehemently opposed to interfere with the order passed by the appellate authority by stating that the charges are very grave against the petitioner. But as stated supra the respondent's enquiry against the petitioner alone is tainted with bias, violative of principles of natural justice and non-speaking order. When the respondent failed to take action against the said Thangapandian, a clout is created on the enquiry that the respondents is trying to save somebody.

¶14For the reasons stated supra, this Court is remitting the case back to conduct denova enquiry, by including the persons who are involved. Since more than one department is involved, then the jurisdiction to conduct enquiry is with the Principal Secretary to the Government, who is the proper authority to conduct enquiry.

¶15The impugned order dated 19.07.2015 passed by the 2nd respondent and consequential impugned orders passed by the first respondent dated

08.11.2017 and 10.05.2018 are quashed. The respondents are directed to reinstate the petitioner into service. Accordingly, this petitioner stands allowed as stated supra. There shall be no order as to costs.

¶16The jurisdictional police is directed to register FIR in this case and conduct investigation.

19.04.2023 NCC : Yes/No Index : Yes/No Internet : Yes/No sbn To

1.The Secretary to the Government, Tourism, Culture and Endowments Department, Fort St George, Chennai 600009.

2.The Commissioner, Hindu Religious and Charitable Endowments Board, Nungambakkam High Road, Chennai 625 034.

S.SRIMATHY, J. sbn

W.P.(MD).No.16157 of 2018

19.04.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 19.04.2023 CORAM THE HONOURABLE MRS.JUSTICE S.SRIMATHY W.P.(MD).No.16157 of 2018 Neelakandan ... Petitioner Vs. 1.The Secretary to the Government, Tourism, Culture and Endowments Department, Fort St George, Chennai 600009. 2.The Commissioner, Hindu Religious and Charitable Endowments Board, Nungambakkam High Road, Chennai 625 034. ... Respondents PRAYER: Writ Petition has been filed under Article 226 of Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the impugned order of dismissal from service of the petitioner issued by the second respondent in Se.Mu.Na.Ka.No.2213/2013/L3 dated 19.07.2015 and consequent impugned orders passed by the first respondent in G.O.(Pa).No.163 dated 08.11.2017 and G.O.(Pa) No.49 dated 10.05.2018 and quash the same and consequently direct the respondents to reinstate the petitioner into service with all attendant and other monetary benefits. For Petitioner : Mr.M.Ramsundar Vijayraj For Respondents : Mr.M.Senthil Ayyanar Government Advocate