C. Jeyarajan Vs. the State of Tamil Nadu, Rep. by Its Secretary, Home Department, - Court Judgment

P.K. Misra, J.

1. The petitioner has filed this writ petition for quashing the order of dismissal from service imposed under the impugned order G.O. (D) Home No. 1072 CTSI-A dated 23.12.1999, passed by the first respondent.

2. The petitioner who initially joined under the Tamil Nadu Electricity Board as a clerk, subsequently joined Judicial service on 25.7.1980 as a Judicial Magistrate. On 10.12.1996, the petitioner was suspended from services in contemplation of departmental proceedings. On 17.12.1996, the first set of charge-sheet consisting of 8 charges was issued. However, since the petitioner was attaining the normal age of superannuation, i.e., 58, on 31.12.1996, he was not allowed to retire and the departmental proceedings continued. Subsequently, on 5.12.1997, a second set of charge-sheet consisting of 5 charges was issued, primarily based on the explanation furnished by the petitioner on 28.10.1996. Out of 8 charges included in the first set of charge-sheet, the enquiry officer found that Charge Nos. 1, 3, 4, 5, 7 and 8 had been proved. Similarly, out of 5 charges in the second charge-sheet, the enquiry officer found that Charge Nos. 1 and 3 had been proved. Ultimately, on the basis of the enquiry report, after calling for further explanation from the delinquent and on the basis of the recommendation made by the High Court, the order of dismissal had been passed. Such order is being challenged in the present writ petition.

3. The main contentions raised by the petitioner are to the following effect:

(1) The petitioner was not paid the subsistence allowance inspite of repeated reminders and in view of such non-payment of subsistence allowance, the petitioner could not effectively defend himself as he was unable to consult a lawyer having expertise in such matters i.e., in Service Jurisprudence.

(2) The conclusions arrived at by the enquiry officer cannot be accepted as such conclusions are based on no evidence and the statements appearing on the record which tend to exonerate the petitioner have been completely ignored.

(3) Even assuming that some of the charges are true, such charges are not of serious type so as to justify an order of dismissal and the petitioner who was on the verge of retirement could have been compulsorily retired instead of being dismissed from service at the fag end of his career.

4. Learned Counsel appearing for the Respondent No. 2 has supported the order of dismissal by submitting that even though subsistence allowance has not been paid, during pendency of the proceedings and even before the order of dismissal was passed, such payment has been subsequently made and the petitioner has not at all been prejudiced in his defence as he had attended the enquiry and by his own admission he had also consulted an Advocate. It is further submitted that at any rate the High Court was at no fault in the matter relating to non-payment of subsistence allowance as the past service records had not been made available by the State Government. It is further submitted that the conclusions of the enquiry officer are based on the materials on record and not perverse. It is further submitted that while dealing with such matters the High Court should not sit as an appellate authority and the punishment imposed cannot be said as grossly disproportionate warranting any interference.

5. There is no dispute that the petitioner was placed under suspension. Even though he reached the age of superannuation on 31.12.1996, he was not allowed to superannuate and the departmental proceeding which had been initiated on 17.12.1996 was continued beyond 31.12.1996 and subsequently a second charge memo was issued on 5.12.1997. It is also not disputed that the order of dismissal was passed on 23.12.1999 and subsistence allowance was paid only after such order of dismissal was passed.

6. In the above background, the main question to be decided is whether the disciplinary proceedings and the consequent order of dismissal got vitiated on account of non-payment of subsistence allowance to the petitioner.

7. Learned Counsel appearing for the petitioner has placed strong reliance upon the decision of the Supreme Court reported in : (1973)ILLJ411SC (Ghanshyam Das Shrivastava v. State of Madhya Pradesh). The aforesaid decision rendered by a Constitution Bench related to punishment imposed on a Forest Ranger against whom departmental proceeding had been proceeded ex parte. The delinquent had repeatedly claimed that he should be paid subsistence allowance and he was not in a position to attend the enquiry. The writ petition of the delinquent having been rejected, appeal was filed in the Supreme Court. The Supreme Court at that stage was of the view that if no subsistence allowance was paid to the delinquent and if he could not go to Jagdalpur to face the enquiry on account of non-payment of subsistence allowance, the enquiry would be vitiated and the order of dismissal could not be sustained. However, the Supreme Court remanded the matter to the High Court for fresh disposal as the High Court had not investigated the point. Thereafter the High Court decided against the delinquent and the delinquent came to the Supreme Court for the second time. Ultimately the Supreme Court observed:

5. With respect, we find it difficult to share the view taken by the High Court. Paragraph 5 of the writ petition expressly alleges that on December 5, 1964, the appellant sent a letter to the Enquiry Officer informing him that unless he was paid subsistence allowance he would not be able to face the enquiry proceedings. The letter was filed along with the petition. It is Annexure H. The letter stated that 'Until and unless I am paid subsistence allowance.... I categorically refuse to face any proceeding...as I have no capacity to do so because of acute shortage of funds.' (emphasis added). This is obviously specific pleading on the point that for non-payment of subsistence allowance he was short of funds and could not attend the enquiry. It is true that his affidavit does not give any particulars about his sources of income and the estimate of expenses to be incurred in the enquiry. But it would prima facie suggest that he had no other sources of income except his pay. If he had no other sources of income, he could not invent them for the purpose of mentioning them in the affidavit. More significantly, the Government affidavit does not allege that he had any other source of income except pay. The fact that he had been drawing a monthly pay of Rs. 300/- till October, 1964, would not necessarily show that he had sufficient money to enable him to go to Jagdalpur to attend the enquiry in February, 1965. He was suspended on October 30, 1964 and thereafter he did not get subsistence allowance until March 20, 1965. Having regard to the prevailing high price, it is not possible to draw any adverse inference against him from the mere circumstance that he had been receiving a monthly pay of Rs. 300/- till October, 1964. The fact that he filed a writ petition immediately on the passing of the order of dismissal and thereafter came in appeal to this Court, would not establish that he had enough resources to enable him to attend the enquiry. It seems to us that on the whole the High Court has gone by conjectures and surmises. There is nothing on the record to show that he has any other source of income except pay. As he did not receive subsistence allowance till March 20, 1965, he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965, after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Articles 311(2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings.

8. Similar view was expressed in the decision of the Supreme Court reported in (1983) 3 SCC 679 (State of Maharashtra v. Chandrabhan Tale) .

9. Learned Counsel has further relied upon the decision of the Supreme Court reported in : (2000)IILLJ1513SC (Jagdamba Prasad Shukla v. State of U.P. and Ors.), wherein it was observed:

8. The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension i.e. from suspension till removal. One of the reasons for not appearing in inquiry as intimated to the authorities was the financial crunch on account of non-payment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to the show-cause notice stated that even if he was to appear in inquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed.

10. Learned Counsel appearing for the respondents on the other hand has submitted that the decisions relied upon by the petitioner relate to case where the delinquent had not attended departmental enquiry as he was not able to do so on account of non-payment of subsistence allowance. He has further submitted that in the present case, however, unless the delinquent clearly establishes that he suffered prejudice on account of non-payment of subsistence allowance, it cannot be said that the departmental enquiry was vitiated.

11. Learned Counsel for the respondents has placed reliance upon the decision of the Supreme Court reported in : AIR2004SC248 (Indra Bhanu Gaur v. Committee, Management of M.M. Degree College and Ors.) wherein the Court came to the conclusion on facts that because of non-payment of subsistence allowance a civil servant was in any way incapacitated or any prejudice has been caused in defending the proceedings and, therefore, mere non-payment of subsistence allowance was not sufficient to vitiate the departmental proceedings.

12. Similar view had been expressed in the subsequent decision of the Supreme Court reported in : (2006)ILLJ413SC (U.P. State Textile Corporation Ltd. v. P.C. Chaturvedi and Ors.).

13. In the facts of the present case, we are not inclined to accept the plea of the respondent on this aspect as, in our opinion, the petitioner has shown sufficient prejudice on account of non-payment of subsistence allowance. The fact that prejudice has been caused can be reasonably inferred from various materials on record. In the letter dated 31.1.1998 addressed to the High Court, the petitioner had indicated that he was not yet granted the subsistence allowance and he prayed for extension of time to submit his defence. In the subsequent letter dated 28.2.1998, the petitioner has also again prayed for subsistence allowance. The relevant portion of the letter is extracted hereunder:.I also submit with a prayer to excuse me for not submitting the written statement as a typed one as I have no money to get it typed as I, myself, my wife and children are forced to starve most of the days as my wife's carry home salary is much less due to recoveries from her pay towards GPF subscription, GPF loan, House building advance and credit society loan etc., and I am not yet given the subsistence allowance since from the date of my suspension i.e. from 10.12.1996.

14. In another letter dated 24.3.1998, the petitioner specifically prayed for payment of subsistence allowance. The claim regarding subsistence allowance was specifically communicated by the petitioner to the Principal District Judge by letter dated 2.4.1998. In the letter dated 20.5.1999, inter alia, the petitioner had indicated:.I further submit that due to nonpayment of (1) my subsistence allowance since my suspension (1-1-97) i.e. for 29 months or (2) the arrears on fixation of new scale of pay from 1-1-96 or (3) the increment accrued on 1-4-95 and 1-4-96, I am starving with my family and I was not able to defend myself against the charges framed against me..

Hence due to the above reasons and of my starving stage with my family, I have to find out some lawyers who are ready to give some advice without expecting any amount from me and after consultation. I have to file my further representation/statement.

15. The petitioner while giving his reply to the findings on the charges, had inter alia indicated:.The enquiry was originally ordered to be conducted by District Judge, Vellore in 1997. I had gone from Tirunelveli to Vellore in 1997 for more than 5 times but no enquiry was conducted. Then the enquiry was ordered to be conducted by the District Judge, Coimbatore. I have came there for more than 10 times to attend the enquiry. I am under suspension, payment of subsistence allowance during the period of suspension was not paid after suspension from 1-1-1997 till date i.e. for more than 2 1/2 years, as a result, myself with wife and children are starving and could not engage a suitable lawyer to defend myself properly against the charges as a reasonable man expect to defend in such circumstances. By now payment of arrears, on wage revision, from 1.1.1996, subsistence allowance from 1.1.1997, sanction of increment accrued on 1.4.1995 and 1-4-1996 is yet to be made to me. Hence I am actually prevented from defending against the charges as I could not engage a suitable lawyer....

I respectfully submit that I am innocent and that is why no one has given evidence against me in the open enquiry itself even after explaining my difficulties for want of subsistence allowance and on further representation on the finding of the charges. If the Hon'ble Committee of Judges are not convincing I beg and pray that I may kindly be pardoned excused considering my age, past services and suffering of my family after suspension without getting any amount of subsistence allowances for over 30 months.

I am already punished with my family.

16. From the above, it is apparent that the petitioner had repeatedly requesting for payment of subsistence allowance and has clearly indicated that in the absence of financial resources he was unable to take the assistance of an able lawyer in preparation of his defence and in pursuing the departmental proceedings. It is no doubt true that the petitioner had not been permitted to engage a lawyer to defend him during the departmental enquiry. However, even if a delinquent is not permitted to be defended through a lawyer during departmental proceedings, the delinquent has always the right to consult any lawyer of his choice and it is obvious that one requires financial resources to consult expert lawyer in any particular branch of law. It is indeed unfortunate that the petitioner's repeated requests for payment of subsistence allowance and for payment of other dues such as payment in the revised scale of pay, fell on deaf ears. It is of course true that neither the District Judge nor the High Court was directly responsible for the delay as it is apparent that due to non-furnishing of certain records by the Government, the matter could not be finalised. It however matters little whether the blame was with the Court or with the State Government. Because of non-payment, obviously the petitioner was at a great disadvantage, both financially as well as mentally and had suffered prejudice.

17. If a cynical view is taken, it can be argued that inspite of non-payment of subsistence allowance the petitioner had participated in the enquiry and had submitted his defence and explanation and therefore it cannot be said that he was prejudiced in any manner. In other words, if the petitioner would have absented himself from the enquiry, he would have been in a better position. Merely because the petitioner thought it fit to co-operate in the enquiry instead of absenting himself, which he had every right to do, the position cannot become worse for the petitioner. Apart from anything else, it was made clear repeatedly by the petitioner that he was not able to consult a competent lawyer of his choice having experience in service matters, including disciplinary proceedings. Prejudice to the petitioner is writ large.

18. Learned Counsel for the respondents has submitted that it cannot be said that any prejudice has been caused as in the affidavit filed in support of the writ petition it has been indicated by the petitioner himself that the petitioner had availed assistance of an Advocate and therefore it cannot be said that he has been deprived of his right to consult an Advocate on account of insufficiency of funds.

19. We do not think such a submission made by the learned Counsel for the respondents can be accepted. As a matter of fact, the entire submission made in the affidavit should be considered and not a stray line from here or there. It is therefore necessary to quote the exact averment made by the petitioner.

12. I further submit that during the entire period of suspension not one copper was paid as subsistence allowance. Being an honest Officer, I could not come all the way from Tirunelveli to Coimbatore, engaging a counsel of my choice, who was well versed in handling Departmental Enquiry. Though I am thankful to Mr. V. Varadharajan, a lawyer practising on the Criminal Side at Vellore, I did not have the complete freedom to have a lawyer of my choice or ability to defend myself without subsistence allowance. Thus I was considerably handicapped....

c) I submit that since no subsistence allowance was paid to me since my suspension on 10.12.96, I could not engage a counsel of my choice and defend myself effectively. I was not paid the subsistence allowance inspite of my several requests. I was paid the subsistence allowance only after my termination. Under those circumstances, I had to seek the assistance of an old friend who was practising on the Criminal Side who tried to help me without meaning any reflection on the counsel, my choice of a counsel and ability to defend myself were seriously affected. The removal order is therefore in violation of principles of Natural Justice.

20. These averments clearly indicate that the petitioner could not get an Advocate of his choice and he had to depend upon a friend, an Advocate who was practising in the Criminal Side. These averments not only establish the prejudice suffered by the petitioner but also expose the hollowness of the submission made by the learned Counsel for the respondents that no prejudice has been caused to the petitioner on account of non-payment of subsistence allowance for the entire period of about 30 months starting from 1.1.1999. Hence we come to the inevitable conclusion that departmental proceedings got vitiated on account of non-payment of subsistence allowance which resulted in denial of affording reasonable opportunity to defend himself. In view of the above conclusion, the order of dismissal from service is liable to be quashed.

21. Learned Counsel for the petitioner has also submitted that the adverse findings recorded by the enquiry officer and subsequently accepted by the disciplinary authority are not acceptable as no reasonable man could have come to such a conclusion. In this context he has submitted that many of the findings are based on no evidence and in respect of other findings the enquiry officer and the disciplinary authority have not considered the effect of relevant statements made by various witnesses, which, if considered, could have gone a long way to establish the innocence of the petitioner.

22. Even though we are of the prima facie view that some of the findings are practically based on no evidence and in respect of some other findings there is a fair possibility of coming to a different conclusion, we desist from delving deep into the matter keeping in view the limited scope of interference in such matters, more so keeping in view the fact that in our opinion the disciplinary proceeding was vitiated on account of nonpayment of subsistence allowance for a long period.

23. Learned Counsel appearing for the petitioner has also submitted that even accepting that some of the charges had been proved, the order of dismissal from service appears to be grossly disproportionate to the nature of delinquency and possibly a very stern view has been taken because of the inappropriate way in which the petitioner had made certain submissions or replies in connection with disciplinary proceedings.

24. Even though there appears to be some justification in the submission made by the learned Counsel for the petitioner that prima facie the punishment may appear to be too harsh, it is not for this Court to sit in appeal in such matters. Moreover, since we have accepted the first submission of the petitioner that the disciplinary proceeding get vitiated due to non-payment of subsistence allowance, we are also not examining in detail this submission.

25. The allegations on the basis of which departmental proceedings are started relate to the period between 1994 and 1996, i.e., more than a decade back. In the peculiar facts and circumstances of the case, we do not think in the interest of justice it is a fit case where there should be any fresh enquiry in the matter as in our opinion the petitioner has suffered enough being subjected to the prolonged agony of facing a departmental enquiry even without being paid the subsistence allowance and thereafter being forced to pursue the present writ petition for about 6 years. At the time when the departmental proceeding was started, the petitioner was 58 years and on the verge of his normal age of superannuation. It may be that if the departmental proceeding would not have been initiated, the petitioner would have been considered for extension beyond the age of 58 years as envisaged by the decision of the Supreme Court in (All India Judge's Association and Ors. v. Union of India and Ors.) . In other words, the petitioner has not been able to enjoy the benefit of extension of rendering service beyond the age of 58, even though for the continuance of the disciplinary proceeding he was not allowed to retire at the age of 58.

26. Having regard to all these aspects and keeping in view the fact that many of the charges were more or less technical violation of Rules, we feel interest of justice would be served by directing that the petitioner shall be deemed to have been retired with effect from 31.12.1996, the date on which he reached the normal age of superannuation, and in view of such direction, obviously the petitioner would be entitled to normal retirement benefits including gratuity and pension. The amount paid towards subsistence allowance for the period from 1.1.1999 till the date of impugned order of dismissal shall be adjusted against the pension payable during the said period. The pension amount payable till the end of July, 2006 and retirement benefits shall be calculated and paid to the petitioner on or before 1st September, 2006. Similarly the pension payable for the month of August, 2006 shall also be paid on the due date and thereafter pension for succeeding months shall be paid as per the normal procedure.

27. Accordingly, the writ petition is allowed to the extent indicated above. No costs.