(Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari Calling for the records of the impugned order dated 15.04.2011 in G.O.(2D) No.183 Revenue Ser.4(2) Department, Government of Tamilnadu, Passed by the 1st respondent and quash the same.)
1. Whether a noting made by a Government employee in the official file indicating his opinion can be the basis for initiating disciplinary proceedings against him, is the core issue that arises for consideration in the present writ petition.
The brief facts:
2. The petitioner was functioning as Sub Inspector of Survey attached to the Taluk Office of Mylapore-Triplicane Taluk. While so, he was placed under suspension on 19 August 2005 pending initiation of disciplinary proceedings. This was followed by a charge memo dated 15 March 2006 issued by the Secretary to Government containing as many as two charges. The first charge alleged that the petitioner has put up a misleading note by calling for records from the Tamil Nadu Housing Board to ascertain as to whether the land was actually acquired by the Board, which according to the department was mischievous and highhanded, in view of the fact that the land has already been acquired for the Board. The second charge relates to issuance of patta on account of the said note.
3. The petitioner in his explanation to the charge memo justified the action taken by him to call for a report from the Tamil Nadu Housing Board. The disciplinary authority appointed an enquiry officer. The enquiry officer conducted a detailed enquiry and submitted a report exonerating the petitioner from the charges. The report was not accepted by the disciplinary authority resulting in issuing a notice to the petitioner as to why the charges should not be treated as "proved". The petitioner, submitted a response to the notice. The disciplinary authority was not prepared to accept the explanation and ultimately passed an order imposing the punishment of stoppage of increment for a period of five years with cumulative effect. Feeling aggrieved by the said order, the petitioner is before this Court.
4. The Deputy Secretary to Government, Revenue Department filed a detailed counter affidavit justifying the initiation of disciplinary proceedings against the petitioner. According to the first respondent, the land in question has already been acquired by the Government for Tamil Nadu Housing Board. Therefore, the petitioner should have made a specific noting that the property belongs to the Tamil Nadu Housing Board. Since the petitioner raised an unnecessary query, it resulted in issuing patta in favour of certain private individuals. The first respondent maintained that the petitioner has made a misleading note and that was the cause for granting patta.
Rival contentions:
5. The learned counsel for the petitioner contended that the petitioner was only a Sub Inspector of Survey and he was no way responsible for issuing the patta. When the application was given, the original revenue records were not before him. Therefore, with a view to protect the interest of the Government, the petitioner made a note indicating that the Housing Board should be addressed to ascertain as to whether the Board has acquired the land. There is nothing wrong in making such an endorsement. The learned counsel further contended that the patta in question was issued only by the Tahsildar. However, no action was taken against the Tahsildar. The learned counsel submitted that the enquiry officer reported that the charges were not proved. However, very strangely, without indicating any dissenting view, the first respondent has disagreed with the findings and punished the petitioner. Therefore, the order is liable to be quashed.
6. The learned Additional Government Pleader justified the order passed by the disciplinary authority. According to the learned Additional Government Pleader, when it is made out that the property absolutely belongs to the Tamil Nadu Housing Board, the petitioner has no business to call for a report from the Housing Board. The learned Government Pleader further contended that the petitioner in collusion with the other revenue officials issued patta in favour of certain private individuals and that was the reason for taking action against him.
Factual Analysis:
7. The Tamil Nadu Housing Board appears to have made a complaint to the Government alleging that an extent of 77 cents and 76.5 cents in Survey Nos.87/1 and 87/2A respectively of Thiruvanmiyur Village belonging to the Board, were illegally transferred to ineligible persons by the Taluk Tahsildar. The Tamil Nadu Housing Board requested the Government to cancel the patta and to restore the original position. The District Revenue Officer appears to have conducted an enquiry. During the course of enquiry the District Revenue Officer found that the Tahsildar has obtained an affidavit from the applicant and issued patta in his favour. The affidavit proceeds as if there was no civil suit pending with respect to the said land and it was not the subject matter of land acquisition proceedings. The affidavit was given on 10 October 2004. Even though the deponent died on 14 September 2004, the affidavit appears to have been signed by him on 10 October 2004. The District Revenue Officer opined that the Taluk Sub Inspector of Suvey recommended the case of the applicant and ultimately the Tahsildar issued patta. The District Revenue Officer also found a file note made by the petitioner. The District Revenue Officer wanted action to be taken against the Tahsildar and his team of officials. This resulted in issuing the charge memo to the petitioner with the following two charges.
"Charge I
That Thiru V. Saravanan, while working as Sub Inspector of Survey in Mylapore-Triplicane Taluk has put up a misleading note for calling of records from the Tamil Nadu Housing Board whether the land was actually acquired by the Board, which is mischievous and highhanded one, since the land in S.No.87/1 of Thiruvanmiuyur Village was acquired by the Tamil Nadu Housing Board in the year 1986 and the registered holder of the land has also been clearly mentioned as Tamil Nadu Housing Board in the Town Survey Land Register.
Charge 2
Because of his above unwarranted action patta has been issued illegally for a land owned by Tamil Nadu Housing Board in T.S.No.23/1, Block 34, of Thiruvanmiuyur Village (Old Survey No.87/1) against all norms of Government servant conduct Rules, 1973."
8. The petitioner in his explanation to the charge memo submitted that the original records were not before him and with a view to protect the interest of the Tamil Nadu Housing Board, he has made a note to call for a report from the Board.
9. The enquiry officer appointed by the disciplinary authority conducted a very detailed enquiry in the matter. The enquiry officer was of the view that the petitioner was not responsible for grant of patta and he has only made a noting to obtain a report from the Housing Board. The said report was considered by the disciplinary authority. The disciplinary authority disagreed with the views expressed by the enquiry officer. The annexure to the letter dated 28 July 2008 on the file of the Revenue Department contains the reasons for holding the charges proved by disagreeing with the findings recorded by the enquiry officer. The said finding reads thus:
"Letter No.45833/Ser4(2)/05-31
dated 28 July 2008
ANNEXURE
Reasons for holding the charges as proved disagreeing with the findings of the Inquiry Officer in respect of Thiru V.Saravanan, formerly Sub-Inspector of Survey.
Charge No.I
You have failed to prevent wrong issue of patta to the individuals rather you have connived with the Tahsildar when the land belonged to the Tamil Nadu Housing Board and put up a misleading note for calling of records from the Tamil Nadu Housing Board, whether the land was actually acquired by the Board. As such this charge levelled against you is held as proved.
Charge No.2
In view of the remarks offered in respect of Charge No.1 holding the charge as proved, this charge also is held as proved."
10. The dissenting note prepared by the first respondent indicates that the petitioner colluded with the Tahsildar to issue patta with respect to a property owned by the Tamil Nadu Housing Board. This dissenting note is nothing but reproduction of the original charge memo issued to the petitioner. There is nothing stated in the said note as to the actual reason which weighed with the disciplinary authority to disagree from the findings recorded by the enquiry officer.
11. The core issue is whether the first respondent was justified in initiating disciplinary proceedings against the petitioner solely on account of making a file note.
12. It is not in dispute that the petitioner is not the authority to issue patta. The Tahsildar of the concerned Taluk is the statutory authority to grant patta. The Tamil Nadu Patta Pass book Act mandates that in case the revenue records does not contain the true facts, it is open to the aggrieved to file an application before the Tahsildar. The Tahsildar is, therefore, the competent authority to grant patta. The application submitted by the applicant to issue patta in respect of the lands in Survey Nos.87/1 and 87/2 at Thiruvanmiyur Village was forwarded to the petitioner. The petitioner having found that the neighbouring lands were acquired by the Tamil Nadu Housing Board, wanted a report to be called for from the Housing Board. Therefore, he made an endorsement in the notes file to call for a report from the Tamil Nadu Housing Board as to whether the land was acquired by the Housing Board. The said note was considered as a misleading note by the first respondent.
13. The fact that the petitioner has made a specific endorsement that before considering the application for patta, a report should be obtained from the Tamil Nadu Housing Board itself shows his bona fides. The file note made by the petitioner to call for a report from the Tamil Nadu Housing Board, cannot be treated as something misleading. It would be a misleading note only in case he has made an endorsement that there is no requirement to obtain a report from the Tamil Nadu Housing Board and the applicant has made out a case for issuance of patta. This aspect was considered by the enquiry officer resulting in submitting a report that the charges were not proved. The first respondent was not having any additional material to take a different view in the matter. The very same charge memo was reissued on a subsequent occasion treating it, as a dissenting opinion, resulting in punishing the petitioner.
14. The Government acts through its instrumentalities. The file would be routed through different officials right from Clerks to the Secretary and then to the concerned Minister. The Subordinate officials are entitled to record their views in the note file. It is open to an officer to express his views with respect to a subject matter in a particular manner. Another officer is entitled to indicate a different opinion. It is for the Government to take a decision in the matter ultimately. In case the ultimate authority to take a decision is the Secretary, necessarily, the Secretary has to examine the opinion recorded by the Subordinates at various levels and to form a definite opinion to accept one view or the other. The views expressed by the concerned officers are all tentative in nature and it would not bind the Government. Merely because the officer has given a particular opinion it cannot be said that he has taken a decision consciously to help a particular person. In case the officers are subjected to disciplinary action on account of their expression of opinion, no officer would be dare enough to indicate his opinion with respect to a subject matter. Things would be different in case records were manipulated to grant undue benefits in exchange of pecuniary gain.
The Authorities:
15. The Supreme Court in Shanti Sports Club v. Union of India, (2009) 15 SCC 705, considered the question as to whether a note recorded in the file would confer any right or adversely affect the right of a person. The Supreme Court observed that notings are only opinion of the concerned officer and it would not constitute a decision.
"52. As a result of the above discussion, we hold that the notings recorded in the official files by the officers of the Government at different levels and even the Ministers do not become decisions of the Government unless the same is sanctified and acted upon by issuing an order in the name of the President or Governor, as the case may be, authenticated in the manner provided in Articles 77(2) and 166(2) and is communicated to the affected persons. The notings and/or decisions recorded in the file do not confer any right or adversely affect the right of any person and the same can neither be challenged in a court nor made basis for seeking relief. Even if the competent authority records a noting in the file, which indicates that some decision has been taken by the authority concerned, the same can always be reviewed by the same authority or reversed or overturned or overruled by higher functionary/authority in the Government."
16. The scope and ambit of notings recorded in the file, came up for consideration in Jasbir Singh Chhabra Vs. State of Punjab 2010 (2) Scale 754 = 2010 (4) SCC 192. The Supreme Court said
"20. ..........It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of whom may record notings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by malafides or is influenced by extraneous considerations. The Court is duty bound to carefully take note of the same."
17. The Supreme Court in Union of India vs. Vartak Labour Union 2011 (3) Scale 246 = (2011] 4 SCC 200 reiterated the legal position that inter departmental communications and notings do not have the sanction of law. The Supreme Court said
"14. It is trite that inter-departmental communications and notings in departmental files do not have the sanction of law, creating a legally enforceable right. In Sethi Auto Service Station & Anr. Vs. Delhi Development Authority & Ors.3 (2009) 1 SCC 180, a Division Bench of this Court, in which one of us (D.K. Jain, J.) was a member has observed thus:
Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned."
Summary of conclusion:
18. The petitioner has only expressed his opinion in the notes file. The petitioner wanted the interest of the Tamil Nadu Housing Board to be protected. It was only for the said purpose the petitioner has made an endorsement that the report of the Housing Board should be obtained as to whether the Board has acquired the property. The noting made by the petitioner was not acted upon by the Tahsildar. The Tahsildar accepted the affidavit produced by the applicant and on the basis of the sworn affidavit, patta was granted. Instead of taking action against the Tahsildar for issuing patta fraudulently, the first respondent has taken action only against the petitioner. The petitioner was not instrumental in issuing patta to the concerned applicant. It appears that the Government have not taken any action against the Tahsildar and action was taken selectively against the petitioner. The disagreeing note prepared by the first respondent does not contain additional materials other than the materials relied on by the enquiry officer to arrive at a conclusion that the petitioner was not responsible for issuing patta in respect of the property owned by the Tamil Nadu Housing Board. The disciplinary authority committed a jurisdictional error by punishing the petitioner for expressing his opinion. Therefore, I am of the view that the impugned order is liable to be set aside.
19. In the result, the impugned order dated 15 April 2011 is set aside. The writ petition is allowed. No costs.