P.Singaravelu Vs. the Government of Tamil Nadu, - Court Judgment

Excerpt:
[k.chandru, j.] government servants conduct rules -- the petitioner was charge sheeted alleging that he had contravened the government servants conduct rules. on notice from this court, the first respondent state has filed a counter affidavit, dated 27.01.2012. for example, rule 3 of the central civil services (conduct) rules, 1964 which occurs under the heading general provides that every government servant shall at all times:this writ petition is preferred under article 226 of the constitution of india praying for the issue of a writ of certiorarified mandamus to call for the records relating to the impugned order of the first respondent in g.o.2(d)no.84, industries (e1) department dated 23.10.2007 and quash the same insofar as the imposition of penalty of dismissal from service in the disciplinary proceedings pursuant to the charge memo issued by the second respondent in rc.no.13523/e1/94, dated 11.11.1995 is concerned and to direct the respondents to reinstate the petitioner in service and permit him to retire from service with effect from 31.8.1999 with all consequential benefits.order1. the petitioner has come forward to file the present writ petition seeking to challenge an order of punishment imposed by the government vide g.o.(2d)no.84, industries department, dated 23.10.2007. by the impugned order, the petitioner who was working as an assistant director of geology and mining at dharmapuri, was removed from service. the removal order came to be made after getting an opinion of the tnpsc which had also concurred with the stand of the government vide their opinion dated 18.7.2005.2. the petitioner was charge sheeted alleging that he had contravened the government servants conduct rules. there were as many as six charges. the major charge was that he had acquired movable and immovable properties in his name as well as in the name of his family members to a tune of rs.4,31,700.51 during the check period from 1.5.1981 to 30.4.1988 which was disproportionate to the known source of his income. he had also contravened the government servant conduct rules in the purchase of lands at various places and an house site. he was also charge sheeted for construction of a house in the name of his wife at dharmapuri. he was further charge sheeted for the investment and lending in the name of his wife at dharmapuri. further, he had purchased a scooter (moped) in the name of his son. he was also running a flour and oil mill at jettihalli in dharmapuri district in the name of his wife along with two other partners.3. after the charge memo issued under rule 17(b) of the tamil nadu civil services (discipline and appeal) rules, as the petitioner was about to reach the age of superannuation on 31.8.1999, the state government had issued an order in g.o.(3d)no.77, industries department, dated 31.8.1999 refusing to permit him from retiring from service. an enquiry was conducted by the enquiry officer, who had also submitted a report stating that the first charge was not proved, the second charge was partially proved and charges 3,4 and 6 lacking substance and charge no.5 was proved. a notice was issued disagreeing with the report of the enquiry officer and holding all the charges were proved except the second charge which was partially proved. the petitioner had further submitted an explanation on the dissent note on 9.8.1999. it is pursuant to the same, the state government considered all relevant materials and after consulting tnpsc had passed the impugned order. it was found that the petitioner's defence that the properties were purchased by his wife cannot be believed as she had no independent source of income to purchase the properties.4. in the writ petition, notice of motion was ordered on 5.1.2008. subsequently, it was admitted on 18.11.2010. on notice from this court, the first respondent state has filed a counter affidavit, dated 27.01.2012. the contention of the petitioner that the views of the tnpsc should have been communicated to him in advance before its acceptance does not stand to reason as no such obligations have been cast in terms of article 320(3) of the constitution. the supreme court vide its judgment in union of india v. t.v. patel reported in (2007) 4 scc 785 has held in paragraphs 11, 23 to 25 as follows :11. the question that calls for determination is as to whether a copy of the advice tendered by upsc is to be furnished along with the order of penalty or before the passing of an order imposing final penalty.23. counsel for the respondent contended that non-supply of a copy of the advice tendered by upsc before the final order was passed deprived the delinquent officer of making an effective representation and therefore it vitiates the order. to support his contention he referred to the decision of this court rendered in state bank of india v. d.c. aggarwal3 where this court held that the disciplinary authority, while imposing punishment, major or minor, cannot act on material which is neither supplied nor shown to the delinquent. imposition of punishment on an employee, on material which is not only not supplied but not disclosed to him, cannot be countenanced. procedural fairness is as much essence of right and liberty as the substantive law itself.24. he also referred to the decision of this court in md, ecil v. b. karunakar4 where this court dealt with the non-furnishing of the inquiry report to the delinquent officer. the facts of the aforesaid decision are distinguishable from the facts of the case at hand. the aforesaid decisions are not relevant for the purpose of adjudication of the case at hand.25. in view of the law settled by the constitution bench of this court in srivastava1 we hold that the provisions of article 320(3)(c) of the constitution of india are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by upsc, if any, does not afford the delinquent government servant a cause of action in a court of law.5. the supreme court vide its judgment in praveen bhatia vs. union of india reported in 2009 (4) scc 225 held that even the delay in submitting the property returns itself is a serious misconduct. in this regard, it is relevant to extract the following passage found in paragraphs 12, 13 and 14 of the judgment."12......17. the range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. it has, therefore, to be noted that the word misconduct is not capable of precise definition. but at the same time though incapable of precise definition, the word misconduct on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. the act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.18. in union of india v. harjeet singh sandhu in the background of rule 14 of the army rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be misconduct under rule 14.19. in baldev singh gandhi v. state of punjab it was held that the expression misconduct means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc.20. similarly, in state of punjab v. ram singh it was held that the term misconduct may involve moral turpitude. it must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.21. misconduct as stated in batt s law of master and servant (4th edn. at p.63) is comprised positive acts and not mere neglects or failures . the definition of the word as given in ballentine s law dictionary (148th edn.) is a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. it differs from carelessness.22. it may be generally stated that the conduct rules of the government and public sector corporations constitute a code of permissible acts and behaviour of their servants.23. the scheme of the conduct rules, almost invariably, is to first of all enunciate a general rule of conduct and behaviour followed by specific prohibitions and restrictions. for example, rule 3 of the central civil services (conduct) rules, 1964 which occurs under the heading general provides that every government servant shall at all times: (i) maintain absolute integrity;(ii) maintain devotion to duty; and(iii) do nothing which is unbecoming of a government servant.the aforesaid aspects were highlighted in m.m. malhotra v. union of india4, scc at pp.362-63, paras 16-23.13.the power of the court to interfere with the quantum of punishment is extremely restricted and only when the relevant factors have not been considered the court can direct reconsideration or in an appropriate case to certain litigation, indicate the punishment to be awarded; and that can only be in very rare cases.14.it is evident from the record that the prescribed period for filing property return is six months and though the appellant was aware of the requirement he did not choose to file any return; even during the course of enquiry no return was filed and ultimately after show-cause notice was issued it was filed. that being so there is no merit in this appeal which is accordingly dismissed."6. considering the over all circumstances of the case and in the nature of misconduct and penalty imposed, this court do not find any case is made out to interfere with the impugned penalty. accordingly, the writ petition will stand dismissed. no costs.