A. Rajaram Vs. the State of Tamil Nadu Rep. by Secretary to Government, Labour Department, - Court Judgment

Excerpt:
- t.n. estates (abolition & conversion into ryotwari) act, 1948 [act no. 26/1948]. sections 5(2) & 67; [a.p. shah, cj, mrs. prabha sridevan & p. jyothimani, jj] suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. -- t.n. estates (abolition & conversion into ryotwari) act, 1948. sections 5(2) & 67; suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. orderk. chandru, j.1. these two writ petitions were filed by the same person. the petitioner herein was working as assistant inspector of labour at tuticorin circle iii. he filed o.a. no. 7767 of 1998, seeking to challenge the order of the state government in g.o.2(d) no. 39 labour and employment (e.2 department) dated 11.08.1997. by the said order, the state government confirmed the order of the commissioner of labour, the second respondent herein dated 13.05.1996 and imposed the punishment of stoppage of increment for six months without cumulative effect. 2. the petitioner filed an appeal to the first respondent dated 15.06.1996. the state government consulted the tamil nadu public service commission and after obtaining a report dated 19.02.1997 passed the impugned order. the tnpsc by its communication dated 19.02.1997 stated that the charges were proved against the petitioner and the punishment was not on the higher side. the state government in the impugned appellate order also stated that there was no ground to entertain the appeal. hence, the petitioner moved the tribunal.3. the charge against the petitioner was that he was issued with a legal notice by a firm of solicitors at calcutta m/s. t.c. ray & company stating that there was an order of the high court of calcutta in a writ petition moved by m/s. adair dutt & co., (india) private limited, chennai -2 prohibiting the labour department from verifying or stamping the electronic weighing machine imported by the company to be sold in the market. it was stated inspite of the receipt of the order of the high court of calcutta, the petitioner insisted on verification and stamping of high accuracy class electronic balances of the company. subsequent to the petitioner's action, a contempt proceeding was initiated against him by the calcutta high court. this contempt proceedings had resulted in an embarassment to the state government of which the petitioner was a part.4. the petitioner was also further charge sheeted about his communication addressed to the said company in an intemperate language, which was not accepted by him and he has been advised by the district office manual to use polite language in all their communication. after receiving the explanation of the petitioner, the punishment came to be imposed. the petitioner challenged the same by filing original application. pending the original application, the petitioner did not have the benefit of any interim order.5. the ground raised by the petitioner was that the petitioner had discharged his power by virtue of section 22 of weights and measures act to avoid revenue loss to the state. it was stated that the controlling officer, namely inspector of labour should initiate the disciplinary action against the petitioner, against which, the petitioner has two appeals, whereas, the head of the department had initiated disciplinary proceedings and imposed punishment, thereby the petitioner was deprived of the right of appeals to deputy commissioner of labour and joint commissioner of labour. it was also stated that the report of the public service commission was not furnished to the petitioner.6. in w.p. no. 41488 of 2006, charges were levelled against the petitioner that he did not appear before the medical board and when he was asked the reason for the same, he unnecessarily interfered with the department's functioning by asking for the result of the complaint made against one assistant inspector who belonged to madurai ix circle. therefore, the petitioner's conduct in not answering the charge was not accepted by the respondents. he did not give proper explanation for not appearing before the medical board. the petitioner raised the contention that an enquiry was not conducted against the said charge and the procedure under rule 17(b) of the tamil nadu civil services (d & a) rules was not followed. hence, the petitioner also filed o.a. no. 9950 of 2000 before the tribunal, seeking to challenge the order of the state government in g.o.(2d) no. 51 labour and employment department dated 20.07.1998.7. by the said order, the state government confirmed the order of the second respondent dated 05.01.1996, by which the petitioner was imposed with the punishment of stoppage of increment for six months without cumulative effect. as against the said punishment, the petitioner preferred an appeal dated 03.03.1996. the state government consulted tnpsc. the tnpsc also gave its opinion dated 27.01.1998. it is after considering the report of the tnpsc and independently perusing the records, the petitioner was imposed with the penalty. pending the original application, the petitioner did not have the benefit of any interim order.8. in view of the abolition of the tribunal, the matters stood transferred to this court and were renumbered as w.p. nos. 41486 and 41488 of 2006. 9. the contention raised by the petitioner was without any substance. with reference to the first contention that the report of the tnpsc was not furnished to the petitioner, it must be stated that the consultation provided under article 320 (sub-clause-3) of the constitution was held to be not mandatory. it has also been held that furnishing of the copy of the advise pending by tnpsc will not vitiate the order vide the decision of the supreme court in union of india v. t.v. patel reported in : 2007 4 scc 785. 10. the second contention that a higher authority had conducted the enquiry and imposed the charge memo thereby depriving an opportunity of filing an appeal also came to be considered by the supreme court in government of andhra pradesh v. n. ramaniah reproted in : 2009 7 scc 165. the supreme court held that there is no legal bar for the higher authority conducting an enquiry and if there was no further appeal, the same can be rectified by filing a review application before the same authority.11. the third submission that he had discharged the statutory duty under the weights and measures act and therefore, no action can be taken against him cannot be accepted. even when a quasi judicial authority functions within the provisions of the statute, if there is any arbitrariness or malafide or undue procedure followed by such authority, the department can take action against such authorities despite exercising of statutory power by such an authority. the division bench of this court after referring to the decision of the supreme court on the issue repelled such contention in t.k.k. tharmar v. registrar general, administrative tribunal, chennai reported in 2008 3 mlj 877 (madras db)12. therefore, none of the contentions raised by the petitioner has any bearing. finally in both the matters, the petitioner was only imposed with a minor penalty of stoppage of increment for six months without cumulative effect after following due procedure provided under the relevant rules. once procedural aspect of the enquiry was conducted properly, there is no question of this court interfering with such punishment in the light of the decision of the supreme court in praveen bhatia v. union of india reported in : (2009) 4 scc 225. in both the cases state government had consulted the tnpsc, which opinion was against the petitioner.13. in the light of the above, both the writ petitions stands dismissed. however, there will be no order as to costs.

Judgment:
ORDER

K. Chandru, J.

1. These two writ petitions were filed by the same person. The petitioner herein was working as Assistant Inspector of Labour at Tuticorin Circle III. He filed O.A. No. 7767 of 1998, seeking to challenge the order of the State Government in G.O.2(D) No. 39 Labour and Employment (E.2 Department) dated 11.08.1997. By the said order, the State Government confirmed the order of the Commissioner of Labour, the second respondent herein dated 13.05.1996 and imposed the punishment of stoppage of increment for six months without cumulative effect.

2. The petitioner filed an appeal to the first respondent dated 15.06.1996. The State Government consulted the Tamil Nadu Public Service Commission and after obtaining a report dated 19.02.1997 passed the impugned order. The TNPSC by its communication dated 19.02.1997 stated that the charges were proved against the petitioner and the punishment was not on the higher side. The State Government in the impugned appellate order also stated that there was no ground to entertain the appeal. Hence, the petitioner moved the Tribunal.

3. The charge against the petitioner was that he was issued with a legal notice by a firm of Solicitors at Calcutta M/s. T.C. Ray & Company stating that there was an order of the High Court of Calcutta in a writ petition moved by M/s. Adair Dutt & Co., (India) Private Limited, Chennai -2 prohibiting the Labour Department from verifying or stamping the Electronic Weighing Machine imported by the Company to be sold in the market. It was stated inspite of the receipt of the order of the High Court of Calcutta, the petitioner insisted on verification and stamping of high accuracy class electronic balances of the company. Subsequent to the petitioner's action, a contempt proceeding was initiated against him by the Calcutta High Court. This contempt proceedings had resulted in an embarassment to the State Government of which the petitioner was a part.

4. The petitioner was also further charge sheeted about his communication addressed to the said company in an intemperate language, which was not accepted by him and he has been advised by the District Office Manual to use polite language in all their communication. After receiving the explanation of the petitioner, the punishment came to be imposed. The petitioner challenged the same by filing Original Application. Pending the Original Application, the petitioner did not have the benefit of any interim order.

5. The ground raised by the petitioner was that the petitioner had discharged his power by virtue of Section 22 of Weights and Measures Act to avoid revenue loss to the State. It was stated that the Controlling Officer, namely Inspector of Labour should initiate the disciplinary action against the petitioner, against which, the petitioner has two appeals, whereas, the Head of the Department had initiated disciplinary proceedings and imposed punishment, thereby the petitioner was deprived of the right of appeals to Deputy Commissioner of Labour and Joint Commissioner of Labour. It was also stated that the report of the Public Service Commission was not furnished to the petitioner.

6. In W.P. No. 41488 of 2006, charges were levelled against the petitioner that he did not appear before the Medical Board and when he was asked the reason for the same, he unnecessarily interfered with the department's functioning by asking for the result of the complaint made against one Assistant Inspector who belonged to Madurai IX circle. Therefore, the petitioner's conduct in not answering the charge was not accepted by the respondents. He did not give proper explanation for not appearing before the Medical Board. The petitioner raised the contention that an enquiry was not conducted against the said charge and the procedure under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules was not followed. Hence, the petitioner also filed O.A. No. 9950 of 2000 before the Tribunal, seeking to challenge the order of the State Government in G.O.(2D) No. 51 Labour and Employment Department dated 20.07.1998.

7. By the said order, the State Government confirmed the order of the second respondent dated 05.01.1996, by which the petitioner was imposed with the punishment of stoppage of increment for six months without cumulative effect. As against the said punishment, the petitioner preferred an appeal dated 03.03.1996. The State Government consulted TNPSC. The TNPSC also gave its opinion dated 27.01.1998. It is after considering the report of the TNPSC and independently perusing the records, the petitioner was imposed with the penalty. Pending the Original Application, the petitioner did not have the benefit of any interim order.

8. In view of the abolition of the Tribunal, the matters stood transferred to this Court and were renumbered as W.P. Nos. 41486 and 41488 of 2006.

9. The contention raised by the petitioner was without any substance. With reference to the first contention that the report of the TNPSC was not furnished to the petitioner, it must be stated that the consultation provided under Article 320 (Sub-clause-3) of the Constitution was held to be not mandatory. It has also been held that furnishing of the copy of the advise pending by TNPSC will not vitiate the order vide the decision of the Supreme Court in Union of India v. T.V. Patel reported in : 2007 4 SCC 785.

10. The second contention that a higher authority had conducted the enquiry and imposed the charge memo thereby depriving an opportunity of filing an appeal also came to be considered by the Supreme Court in Government of Andhra Pradesh v. N. Ramaniah reproted in : 2009 7 SCC 165. The Supreme Court held that there is no legal bar for the higher authority conducting an enquiry and if there was no further appeal, the same can be rectified by filing a review application before the same authority.

11. The third submission that he had discharged the statutory duty under the Weights and Measures Act and therefore, no action can be taken against him cannot be accepted. Even when a quasi judicial authority functions within the provisions of the statute, if there is any arbitrariness or malafide or undue procedure followed by such authority, the department can take action against such authorities despite exercising of statutory power by such an authority. The Division Bench of this Court after referring to the decision of the Supreme Court on the issue repelled such contention in T.K.K. Tharmar v. Registrar General, Administrative Tribunal, Chennai reported in 2008 3 MLJ 877 (Madras DB)

12. Therefore, none of the contentions raised by the petitioner has any bearing. Finally in both the matters, the petitioner was only imposed with a minor penalty of stoppage of increment for six months without cumulative effect after following due procedure provided under the relevant Rules. Once procedural aspect of the enquiry was conducted properly, there is no question of this Court interfering with such punishment in the light of the decision of the Supreme Court in Praveen Bhatia v. Union of India reported in : (2009) 4 SCC 225. In both the cases State Government had consulted the TNPSC, which opinion was against the petitioner.

13. In the light of the above, both the writ petitions stands dismissed. However, there will be no order as to costs.