Full Judgment
N. Paul Vasanthakumar, J.
1. By order dated 9.9.1996, the writ petitioner was imposed with the punishment of withholding of increment for two years without cumulative effect by the second respondent, which was enhanced to that of removal from service by the order of the first respondent dated 12.8.1999 on suo-motu revision under Rule 36(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The said order of the first respondent dated 12.8.1999 is challenged in this writ petition.
2. The facts leading to filing of the writ petition are that the petitioner, while working as Village Administrative Officer, Melandal, was placed under suspension by the Revenue Divisional Officer in his proceedings dated 17.8.1994 on the ground that an enquiry into grave charges is contemplated. The charges framed against the petitioner are that,
(i) while working as Village Administrative Officer of Melandal village from 14.12.1988 to 30.6.1994, he collected land revenue from pattadars to the tune of Rs.38,231/- as stated in Annexures 1 and 2 and failed to remit the same into the Government Account immediately and thus temporarily misappropriated the said amount,
(ii) in the receipts issued for payment of land revenue, though in the first copy one pattadar's name and the amount paid by him were mentioned, in the second and third copies, he fraudulently mentioned another pattadar's name and different amoun against the Government rules and thus misappropriated the differential amount, and that
(iii) corrected the Government documents fraudulently and thereby misappropriated Rs.38,231/-
A charge memo was issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules on 23.9.1995. For the very same charges, a criminal case was registered under Section 409 I.P.C., in crime No. 47 of 1996 of Manaloor Police Station. Petitioner had submitted his explanation on 2.10.1995 and according to him, he had repaid the amount of Rs.38,231/-, said to have been misappropriated, as early as on 31.3.1995. The Enquiry Officer, after concluding the enquiry, submitted his report on 31.5.1996 holding that charges 2 and 3 are proved and that in respect of the first charge, a criminal case is pending. The Disciplinary Authority/Revenue Divisional Officer, after going through the enquiry report and taking into consideration the remittance of the alleged misappropriated money by the petitioner, imposed the punishment of withholding of increment for two years without cumulative effect. Petitioner was given thirty days time to file appeal before the District Revenue Officer, Villupuram, but however, he did not file any appeal. According to the petitioner, the criminal case initiated against him under Section 409 I.P.C., in C.C. No. 149 of 1998 ended in acquittal.
3. Respondents herein filed a counter affidavit stating that at the first instance on an initial enquiry a sum of Rs.6,230/- was detected as misappropriation and on further investigation it was found that the petitioner misappropriated Government money to the tune of Rs.38,2 31/-. It is further stated that during enquiry, the petitioner admitted the charges levelled against him and also remitted the sum of Rs.38,231/- on 31.5.1995 voluntarily and hence the Disciplinary Authority imposed the punishment of withholding of increments for two years without cumulative effect by order dated 9.9.1996. In the counter affidavit it is further stated that as per Rule 36(1)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the first respondent as the Head of the Department is empowered to revise the order of punishment at any time. Pursuant to that, as the punishment was found to be inadequate, a show cause notice was issued on 29.10.1997 and subsequently the order dated 12.8.1999 was passed removing the petitioner from service.
4. The learned Counsel appearing for the petitioner argued that the first respondent being the Head of the Department, has no jurisdiction to suo-motu review the punishment imposed upon the petitioner after six months. The learned Counsel further argued that Rule 36(1)(ii) empowers the Head of the Department to review the order suo-motu, only within six months from the date of the order and the State Government alone can exercise suo-motu revisional power at any time, that is, even after expiry of six months. Therefore, the learned Counsel submitted that the suo-motu review made by the first respondent, who is only Head of the Department, enhancing the punishment, is totally unsustainable and without jurisdiction. The learned Counsel also argued that there is no misappropriation at all, committed by the petitioner and the belated remittance alone was found fault with.
5. The learned Counsel for the petitioner further submitted that while admitting O.A. No. 5003 of 1999, the State Administrative Tribunal granted stay, pursuant to which the petitioner was reinstated and he attained the age of superannuation on 31.8.2005 on which date the petitioner was not allowed to retire, but an order of suspension was passed.
6. I have considered the rival contentions made by the learned Counsel for the petitioner as well as the learned Government Advocate.
7. Rule 36(1)(ii) and (iii) of the Tamil Nadu Civil Services ( Discipline and Appeal) Rules read as follows,
Rule 36. Revision of Orders by the Appellate Authorities and the Higher Authorities.
(1) Notwithstanding anything contained in these rules:-
(i) ....
(ii) the head of the department directly under the State Government, in the case of a Government servant serving in a department or office under the control of such head of the department, or departments; or
(iii) the appellate authority, other than the State Government, within six months of the date of the order proposed to be revised; or,
(iv) ....
may at any time, either on their or its own motion or otherwise call for the records of any inquiry and after consultation with the Tamil Nadu Public Service commission, where such consultation is necessary, revise any order made under these rules, and may- ....
A reading of Rule 36(1)(ii) and (iii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules disclose that the head of the department or the appellate authority, other than the State Government, can review the punishment of a Government Servant within six months and the Government alone can at any time, either on its own motion or otherwise, revise any order of punishment beyond the period of six months. The said position is also made clear by the Government in G.O.Ms. No. 63, Personnel and Administrative Reforms (N) Department, dated 2.2 .1996, which is extracted hereunder,
Government of Tamilnadu Abstract PUBLIC SERVICES - Amendment to Rule 36(1)(iii) of Tamilnadu Civil Services (Discipline and Appeal) Rules ---- Notification issued.
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PERSONNEL AND ADMINISTRATIVE REFORMS (N) DEPARTMENT
G.O.Ms. No. 63 Dated : 2.2.1996 Read:-
G.O.Ms. No. 406, Personnel and Administrative Reforms (Per.N) dated 23.12.92.