THE SECRETARY TO GOVERNMENT, vs A.SUBRAMAINAN,
- Court
- Madras High Court
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W.A(MD)No.1853 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 28.08.2026
PRONOUNCED ON : 09.09.2026
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
and
THE HONOURABLE MR. JUSTICE N.DILIP KUMAR
W.A(MD)No.1853 of 2021
and
C.M.P.(MD).No.8081 of 2021
1.The Secretary to Government
Revenue Department
Secretariat,
Chennai -600 009.
2.The Principal Secretary and Commissioner of Revenue Administration,
Ezhilagam, Chepauk,
Chennai 600 005. ... Appellants
Vs.
A.Subramanian ... Respondent
Prayer: This Writ Appeal is filed under Clause 15 of Letters Patent Act,
against the order dated 02.11.2020 passed in W.P.(MD).No.14963 of 2014
For Appellants : Ms.J.Saranya
Government Advocate
For Respondent : Mr.S.Visvalingam
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JUDGMENT
(Judgment of the Court was made by N.DILIP KUMAR, J. )
This Intra-Court appeal is filed by the Government against the
order dated 01.11.2020 passed by the Learned Single Judge of this Court in
W.P.(MD) No.14963 of 2014.
2.The respondent before us is the writ petitioner.
3.For the sake of convenience, the parties are referred to as set out
in the writ proceedings.
4.The writ petitioner filed W.P.(MD) No.14963 of 2014 challenging
the order of the second respondent bearing Ref.No.Ser.V2/43877/2011
dated 20.06.2012, whereby the writ petitioner was imposed with a
punishment of compulsory retirement and the further order of the first
respondent passed in G.O.(D) No.406, Revenue (Ser.7(2)) Department, dated
18.08.2014, whereby the appeal filed by the writ petitioner against the
punishment order was rejected. The writ petitioner also sought for the
issuance of a Writ of Mandamus directing the Government to sanction
regular pension and other retirement benefits.
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5.The facts leading to the filing of this writ appeal, in a nutshell,
are as follows:-
i) The writ petitioner upon abolition of the post of Hereditary
Karnams/Headman joined duty as Village Administrative Officer on
01.09.1982; he was due to retire upon attaining the age of superannuation
on 31.05.2004; vide twin orders both dated 27.05.2004, he was placed
under suspension and as well retained in service for the purpose of
completion of the pending enquiry regarding the action of the writ petitioner
in acquiring assets disproportionate to his known sources of income; the
writ petitioner was subjected to disciplinary proceedings before the Tribunal
for disciplinary proceedings, Madurai in TDP Case.No.15/2007, that
commenced upon the order of the Government in Government Letter No.(ID)
417/Revenue Department dated 19.07.2007; the writ petitioner was charged
with misconduct under Rule 20(1) of the Tamil Nadu Government Servants
Conduct Rules, 1973, on the premise that he failed to maintain absolute
integrity and devotion to duty as he is found to have acquired and possessed
assets disproportionate to the known sources of his income during the
period from 01.01.1994 to 31.12.1998, to the extent of Rs.1,53,147/-; the
enquiry happened for three years and the final report of the Commissioner of
disciplinary proceedings was submitted to the Department vide letter
No.A1/326/2007 (TDP No.15/2007) dated 29.02.2010; the writ petitioner
filed W.P.(MD) No.6930 of 2011 seeking to expedite and dispose of the
disciplinary action that was conducted against him in T.D.P.Case.No.
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15/2007; this Court vide order dated 29.06.2011 disposed W.P.(MD) No.
6930 of 2011 granting the limited relief of directing the respondents to pass
orders on the disciplinary proceedings initiated against the writ petitioner
within a period of 8 weeks; upon conclusion of enquiry and receipt of the
final report, further opportunity of hearing was given to the writ petitioner by
the Disciplinary Authority and he was imposed with a punishment of
compulsory retirement from service on 20.06.2012; he filed an appeal
against the said order of punishment; his appeal before the first respondent
was kept pending and therefore he was prompted to file W.P.(MD) No.2626 of
2013, seeking to expedite the appeal; this Court on 03.12.2013 passed
orders in W.P.(MD) No.2626 of 2013 directing the respondents to dispose of
the appeal filed by the writ petitioner dated 09.09.2012 within a period of 12
weeks; the appeal was dismissed on 18.08.2014.
ii) Finally, the third writ petition, which is the subject matter, i.e.,
W.P.(MD) No.14963 of 2014, was filed against the punishment order as well
as against the order of rejection of the appeal filed by the writ petitioner by
the respondents 2 and 1 respectively;
iii) This challenge to the disciplinary proceedings and against the
order passed in the appeal filed by the writ petitioner was on various
grounds viz., the disciplinary proceedings were initiated after a long,
inordinate and unexplained delay; there was an inordinate delay in
concluding the disciplinary proceedings for 8 years from the date of his
suspension on 27.05.2004 to the date of passing of the final order on
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20.06.2012; the order of the appellate authority is without any reasons, i.e.,
it is a non-speaking order, bereft of consideration of any of the grounds
raised in the appeal and without any application of mind, the views obtained
by the appellate authority from Tamil Nadu Public Service Commission were
blindly accepted without even giving an opportunity to the writ petitioner by
furnishing a copy of the said enquiry report of the Tamil Nadu Public Service
Commission; the conclusion of the Disciplinary Authority on the factual
matrix is also vitiated for non-appreciation of the material evidence and
perverse for its failure in arriving at a fair conclusion on the available
materials.
iv) The learned single Judge accepted the case of the writ petitioner
that there is a long and inordinate delay in the initiation of the disciplinary
proceedings; the learned single Judge after referring to a catena of decisions
in support of her findings, held that there is a long and inordinate delay both
in concluding the disciplinary proceedings; the order of the appellate
authority is lacking in reasons; and also on the final ground as well, that the
charges against the writ petitioner were erroneously held as proved and
therefore, the punishment imposed against the writ petitioner could not be
sustained.
6.The learned Government Advocate appearing for the appellants
would argue that the order of the Disciplinary Authority could not have been
easily interfered with by the Writ Court in exercise of powers conferred under
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Article 226 of the Constitution of India; there is substantial power available
with the Disciplinary Authority to continue with the disciplinary proceedings
initiated against the writ petitioner, even after the writ petitioner attained the
age of superannuation; there is substantial material available to support the
conclusion of the Disciplinary Authority that the writ petitioner was found to
have acquired disproportionate assets to the extent of Rs.1,53,147/- than
the known sources of the income during the period from 01.01.1994 to
31.12.1998 and that the concept of delay cannot be applied to cases
involving a probe by the Vigilance and Anti Corruption Department, as it
cannot be equated to cases, where the delinquent is charged for some
misconduct related to lapses in the discharge of his duties; the acquiring of
wealth disproportionate to the known sources of income, is a fact within the
knowledge of the delinquent officer and action came to be initiated soon
upon the department, coming to know about the said fact and after an
enquiry warranting action by the Vigilance wing of the department.
7. Per contra , the learned counsel for the writ petitioner/respondent
herein sought to support the order of the Writ Court and argued that there is
no substantial ground to interfere with the well reasoned order of the learned
single Judge on any one of the reasons, for which the learned single Judge
had allowed the writ petition. He had also circulated his written notes of
submission, which reiterated the points canvassed before us as well.
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8.We heard the learned counsel on either side and perused the
materials available on record.
9.The order of suspension is dated 27.05.2004. In the said order
of suspension, it is stated that the writ petitioner, a Village Administrative
Officer, had acquired the landed properties to an extent of 5.24 acres during
the period from 1986 to 1992 and had also constructed a house worth about
Rs.5,00,000/- without getting prior permission from the competent authority
and had also dug an open well and also sunken a bore well in his lands and
had purchased a Tractor and that the reputation of the delinquent officer is
very bad. Subsequently, the writ petitioner was subjected to disciplinary
proceedings upon the orders of the Government dated 19.07.2007; charges
were framed against him by the Tribunal for disciplinary proceedings and it
is as follows:-
“ CHARGE: that during the period from 01.01.1994 to
31.12.1998, the writ petitioner, viz., A.Subramanian, former
Village Administrative Officer, Villapuram, Madurai, was found
to have acquired and possessed assets, which are found to be
disproportionate to the known sources of his income to the
extend of Rs.1,53,147/-, as detailed in the enclosed statements I
to VII, for which the delinquent officer was not able to account
for satisfactorily and thus, the writ petitioner had failed to
maintain absolute integrity and devotion to duty and had
thereby, violated Rule 20(1) of the Tamil Nadu Government
Servants Conduct Rules, 1973.”
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10.It is true that for the alleged period from 1994 to 1998, the
charges were framed on 14.11.2007 and delivered upon the writ petitioner
on 21.01.2008. There is a long and inordinate delay of 9 years from the end
of the check period to the framing of the charges. The explanation by the
department is that they did not have knowledge about the conduct of the
petitioner in acquiring wealth disproportionate to the known sources of
income and soon upon getting to know of the said fact, he was placed under
suspension and after a preliminary enquiry on the Vigilance side, a proper
charge memo was framed and served.
11.There was a further delay in completion of the proceedings that
commenced with the suspension of the writ petitioner in 2004 to the passing
of the final order of punishment on 20.06.2012 for a further period of 8
years.
12.The delinquent officer was due to retire on 31.05.2004. On the
last day of his work i.e., on 31.05.2004, he was served with the order of
suspension and the order to retain him into service, both dated 27.05.2004.
Since 2004, he had to undergo the ordeal of conducting the disciplinary
proceedings for 8 long years till 2012.
13.In the above factual backdrop, the question that arises for
consideration is whether such inordinate delay both in the initiation of the
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disciplinary proceedings and in the culmination of the disciplinary
proceedings can be a ground to quash the order of punishment passed after
a detailed enquiry conducted by the Tribunal for disciplinary proceedings.
14. In support of his argument to quash the punishment order
upon the culmination of the disciplinary proceedings on the ground of delay,
both in the institution of the disciplinary proceedings and also in the
conclusion of the disciplinary proceedings, the learned counsel for the writ
petitioner had referred to a long line of authorities, listed as under:-
“i) State of Punjab and others Vs. Chaman Lal Goyal
reported in (1995) 2 SCC 570
ii) P.V.Mahadevan Vs. M.D. Tamil Nadu Housing Board
reported in 2005 (2) CTC 403
iii) The Special Commissioner Vs. N.Sivasamy,
Commercial Tax reported in (2005) 4 MLJ 659
iv) The Government of Andhra Pradesh and others Vs.
Appala Swamy reported in (2007) 14 SCC 49”
15. In Chaman Lal Goyal case reported in (1995) 2 SCC 570 ,
the charge memo and the order appointing the enquiry officer were quashed
on the ground of delay, with a clear rider recorded as follows: -
“...How long a delay is too long always depends on facts
of the given case.... Wherever such a plea is raised, the Court has to
weight he factors appearing for and against the said plea and take
a decision on the totality of the circumstances....”
16. In P.V .Mahadevan Vs MD Tamil Nadu Housing Board
reported in 2005 (4) CTC 403 , the Hon'ble Apex Court was dealing with a
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writ petition seeking to quash the charge memo on the ground of delay; and
the Apex Court in the recorded circumstances of the said case, had quashed
the charge memo.
17. A division bench of this Court in The Special Commissioner
Vs N. Sivasamy reported in (2005) 4 MLJ 659 was dealing with a case
seeking to quash the suspension order and the charge memo on the ground
of delay and also on the ground that the discharge of quasi-judicial functions
cannot be the subject matter of disciplinary action. The Division Bench
taking note of the position that the action of the delinquent officer as a
Commercial Tax Officer, even if he had committed error in passing orders of
assessment cannot be subjected to disciplinary proceedings and also
noticing the delayed progress of the disciplinary proceedings quashed the
same.
18.The Hon'ble Supreme Court in Government of Andhra
Pradesh and others Vs. Appala Swamy reported in (2007) 14 SCC 49 had
categorically held that the quashing of the delayed proceedings continuing
after retirement is not permissible, unless the employee before approaching
the High Court had made out before the Enquiry Officer that he was
prejudiced by the inordinately delayed initiation of the disciplinary
proceedings.
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19. The above precedents, we are afraid, may not come to the
rescue of the writ petitioner, when applied to the facts and circumstances of
the present case. In those cases, the aggrieved parties approached the Court
at the charge-memo stage. Here, by contrast the petitioner actively
participated in the disciplinary proceedings, took his chance with the
possible outcome, and only raised the issue of delay after suffering an
adverse order of punishment.
20. We are reminded of the judgment of the Larger Bench of
Hon'ble Supreme Court in State of Madhya Pradesh and another vs.
Akilesh and another reported in (2021) 12 SCC 460, wherein it is held
that the delay cannot be a sole ground to quash the disciplinary
proceedings and every delay in concluding the disciplinary enquiry does
not, ipso facto , lead to the enquiry being vitiated and at best, there could
only be a direction to expeditiously conclude the enquiry and not quash the
enquiry in its entirety.
21. The proposition canvassed by the writ petitioner that the delay
in the initiation of the disciplinary proceedings and the completion of
disciplinary proceedings vitiate the same is not acceptable to us, for the
following reasons:.
i. Firstly, the writ petitioner had not challenged the disciplinary
proceedings at the stage of issuance of a charge memo on the ground that
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the disciplinary proceeding is initiated after a long and inordinate delay.
Rather, he voluntarily took part in the disciplinary proceedings without
demur and had also cross examined the witnesses and entered into defence.
ii. Secondly, he had not raised a plea of any prejudice having been
caused to him because of such delay in the initiation of disciplinary
proceedings before the disciplinary authority and consequently, his plea on
the ground of initiation of delay in disciplinary proceedings is not acceptable.
In the subject case, the writ petitioner had consciously participated in the
disciplinary proceedings and had not espoused any prejudice that occurred
to him due to such delayed initiation of the disciplinary proceedings.
iii. Thirdly, in fact, he had come before this Court on 25.06.2011
with W.P.(MD) No.6930 of 2011 asking, not to quash the disciplinary
proceedings on the ground of delay , but with the following prayer:-
“To issue a Writ of Mandamus, directing the respondent to dispose
of the disciplinary action against the petitioner by passing orders
on the enquiry report sent by the Commissioner of Disciplinary
Proceedings, Madurai in his letter No.A-1/326/2007 (T.D.P. No.
15/2007) dated 29.02.2010 within a specified time frame that
may be fixed by this Honourable Court. ”
It was disposed on 29.06.2011 with a simple direction to pass
order in the disciplinary proceedings within a time frame. He was then
imposed with an order of punishment on 20.06.2012. The writ petitioner
then filed a departmental appeal on 09.09.2012 and structurally came
before this Court on 15.02.2013 with W.P.(MD) No.2626 of 2013, not to
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challenge the punishment or the disciplinary proceeding on the ground of
delay or any other ground but with the following prayer:-
“To issue a Writ of Mandamus, directing the first
respondent to dispose of the petitioner s appeal dated 09.09.2012
against the orders dated 20.06.2012 of the Commissioner of
Revenue Administration, Chennai passed in his proceedings
No.Ser.V(2) 43877/2011, on merits and in accordance with law
within a specified time frame that may be fixed by this Honble
Court.”
This was disposed on 03.12.2013 with an innocuous direction to
dispose of the appeal within a time frame. This ground to attack the
disciplinary proceedings on the ground of delay was very much available to
the writ petitioner, when he filed the aforesaid two writ petitions. He did not
choose to canvass the said ground at that point of time. Though the
provision of Code of Civil Procedure is not directly applicable to the writ
proceedings by extending the underlying public policy against splitting the
claims, and invoking the “Doctrine of Waiver” we hold that the failure of the
writ petitioner to challenge the disciplinary proceedings on the ground of
delay in the initiation of disciplinary proceedings or in the completion of
proceedings in those two writ petitions makes him ineligible to canvass the
same, after suffering an order of punishment, and after effectively
participating in the disciplinary proceedings and after failing to get himself
exonerated of the charges.
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iv.Fourthly, mere delay cannot be a reason to quash the
disciplinary proceedings, more so, when the charges are grave and serious,
involving acquisition of assets disproportionate to the known sources of
income. Useful reference can be made to the judgment of the Hon'ble Apex
Court in Anant R.Kulkarni Vs. Y.P.Education Society and others
reported in (2013) 6 SCC 515 . The Hon'ble Apex Court had held that the
court must take into consideration all the relevant facts and evaluate the
same, so as to determine, if it is in fact in the interest of clean and
honest administration , that the disciplinary proceedings should be
terminated, only on the ground of a delay in conclusion of the proceedings.
The Court cautioned that the High Court or the Tribunal should verify the
gravity of the charges and the departmental enquiry can be quashed on the
ground of delay only if the charges are not very grave. In the present case,
admittedly, the charges against the writ petitioner are grave and serious. He
is alleged to have acquired assets disproportionate to the known sources of
income. Useful reference is made to the judgment of the Hon''ble Supreme
Court in P.D.Agrawal vs. State Bank of India and others reported in
(2006) 8 SCC 776 . Relevant portion of the same reads as under:-
“17.The validity of the disciplinary proceeding and/or justifiability
thereof on the ground of delay or otherwise had never been raised
by the Appellant before any forum. It was not his case either before
the Appellate Authority or before the High Court that by reason of
any delay in initiating the disciplinary proceeding he had been
prejudiced in any manner whatsoever. It may be true that delay
itself may be a ground for arriving at a finding that enquiry
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proceeding was vitiated in the event it is shown that by reason
thereof the delinquent officer has been prejudiced, but no such case
was made out.
.........
28.In Additional Supdt. of Police vs. T. Natarajan [1999
SCC (L&S) 646], this Court held:
"In regard to the allegation that the initiation of the
disciplinary proceedings was belated, we may state that it is settled
law that mere delay in initiating proceedings would not vitiate the
enquiry unless the delay results in prejudice to the delinquent
officer. In this case, such a stage as to examine that aspect has not
arisen."
29.In this case, as noticed hereinbefore, the Appellant did
not raise the question of delay before any forum whatsoever. He did
not raise such a question even before the Disciplinary Authority. He
not only took part therein without any demur whatsoever, but, as
noticed hereinbefore, cross- examined the witnesses and entered
into the defence. The Principles of natural justice cannot be put in a
straight jacket formula. It must be seen in circumstantial flexibility. It
has separate facets. It has in recent time also undergone a sea
change.”
22.Accordingly, we are of the considered view that the reason of the
learned single Judge in setting aside the order of punishment on the ground
of delay in initiation of the disciplinary proceedings and also in conclusion of
the disciplinary proceedings is not sustainable and the finding in this regard
is hereby set aside.
23.However, in our considered view, the learned single Judge had
rightly concluded that the order of the appellate authority is bereft of
reasons and apart from being a non-speaking order, it is also passed without
any application of mind.
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24. The counsel for the writ petitioner had also relied upon a
judgment of the learned single Judge of this Court in N.S.Jayaraman and
sons Vs. Government of India reported in 2010 (2) CWC 485 to persuade
us to appreciate the proposition that a non-speaking order bereft of reasons
is in violation and is liable to be set aside and also the judgment in
V.P.Sureshkumar Vs. Deputy Inspector General of Police, Armed Police
Trichy reported in (2011) 7 MLJ 1282 and the judgment of the co-ordinate
Bench of this Court in the Secretary to the Government Vs. G.Nagendran
reported in 2016 (2) CWC 445 and the unreported judgment in W.A.(MD)
No.779 of 2024 , dated 08.04.2021 .
25. A perusal of the order dated 18.08.2014 passed in the appeal
filed by the writ petitioner reveals that the appellate authority had simply
reproduced the opinion obtained by the appellate authority from the TNPSC
and in para 9, he concludes that the appellate authority had decided to
reject the appeal of the delinquent officer. Para 9 is extracted hereunder: -
“The Government have carefully and independently
examined the appeal of Thiru A.Subramanian, formerly Village
Administrative Officer, Melur Taluk, Madurai District dated
09.09.2012 along with the views of Tamil Nadu Public Services
Commission and hold that the appeal preferred by the appellant
is devoid of merits and "there is no need to interfere in the
punishment of Compulsory retirement to the Appellant imposed by
the Principal Secretary / Commissioner of Revenue Administration"
and have decided to reject the appeal of Thiru A.Subramanian,
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formerly Village Administrative Officer, Melur Taluk, Madurai District,
dated 09.09.2012 against the orders of Principal Secretary /
Commissioner of Revenue Administration imposing the punishment of
compulsory retirement in the proceedings No.Ser.V(2)/43877/2011,
dated 20.06.2012 as devoid of merits and order accordingly.”
26.Apparently, no reason is found available in the said order of the
appellate authority. The reason for seeking the opinion of the TNPSC is not
available anywhere in the impugned proceedings. Further, it is well settled
legal proposition that the reason must be reflected in the order of the
appellate authority for refusing to accept the grounds raised in the appeal.
Useful reference can be made in Divisional Forest Officer, Kothagudem
and others Vs. Madhusudhan Rao reported in (2008) 3 SCC 469 . The
Hon'ble Apex Court had held that though no detailed reasons are required to
be given at least some brief reasons should be indicated even in the order of
affirming the views of the lower authority. Unfortunately, in the case on
hand, the appellate authority had merely reproduced the opinion he
obtained from TNPSC and came to a cryptic conclusion recorded in para 9
that he does not find any reason to interfere with the order of punishment.
27. Further, there is no reason elicited before us for the appellate
authority to call for a report from TNPSC or to rely upon the same, without
even furnishing a copy of the same to the delinquent officer. The question is
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can a TNPSC report be sought and obtained behind the back of the
delinquent officer, and relied upon without supplying the same to the
delinquent officer, and will it attract the prohibition of malice in law.
28. A reference is necessary to the judgment of the Hon'ble Apex
Court in Union of India and another Vs. T.V.Patel reported in (2007) 4
SCC 785. It was a case involving a delinquent officer under the Central Civil
Services. The Supreme Court held that there is no requirement on the part of
the disciplinary authority to make available a copy of the advise tendered by
UPSC to the delinquent officer to enable him to make an effective
representation to the punishment proposed. After noticing the differing view
in State Bank of India and others Vs. D.C.Aggarwal and another
reported in (1993) 1 SCC 13, by referring to the judgment of the
constitutional Bench in State of Uttar Pradesh and another Vs.
Manbodhan Lal Srivastava reported in (1957) 2 SCC 759, the Supreme
Court held that the supply of a copy of the advice tendered by UPSC is not a
mandatory requirement. Relevant portion is extracted as under:-
"12.In Swamy's Compilation of CCS CCA Rules, Rule 15 deals
with the action on the inquiry report.
13.Sub-rule (3) of Rule 15 reads as under:
“15.3) If the Disciplinary Authority having regard to its
findings on all or any of the articles of charge is of the opinion
that any of the penalties specified in Clauses (i) to (iv) of Rule 11
should be imposed on the Government servant, it shall,
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notwithstanding anything contained in Rule 16, make an order
imposing such penalty:
Provided that in every case where it is necessary to
consult the Commission, the record of the inquiry shall be
forwarded by the Disciplinary Authority to the Commission for its
advice and such advice shall be taken into consideration before
making any order imposing any penalty on the Government
servant.
14. Part IX of the CCS Rules deals with Miscellaneous. Rule 32
deals with Supply of copy of Commission's advice. It reads:
"Supply of copy of Commission's advise:- Whenever the
Commission is consulted as provided in these rules, a copy of
the advice by the Commission and where such advice has not
been accepted, also a brief statement of the reasons for such
non-acceptance, shall be furnished to the Government servant
concerned along with a copy of the order passed in the case, by
the authority making the order."
15. In the aforesaid premises, Mr. B.Datta, learned ASG,
contended that a consultation with the UPSC under Article 320 (3)
(c) is not mandatory and the advice tendered, if any, by the UPSC is
not binding on the Disciplinary Authority. It is further contended
that such advice would not confer any rights on a public servant so
that the absence of consultation or any irregularity in consultation
does not afford him a cause of action in a court of law. He further
contended that even otherwise Rule 32 of the Rules is clear that a
copy of such advice shall be furnished to the delinquent servant
along with a copy of the order passed in the case, by the authority
making the order.
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16.There is substance in the contention of Mr. Datta,
learned ASG.
17. As already noticed, Rule 32 of the Rules deals with
the supply of a copy of Commision's advice. Rules as read as it is
mandatory in character. Rule contemplates that whenever a
Commission is consulted, as provided under the Rules, a copy of
the advice of the Commission and where such advice has not been
accepted, also a brief statement of the reasons for such non-
acceptance shall be furnished to the Government servant along with
a copy of the order passed in the case, by the authority making the
order. Reading of the Rule would show that it contemplates two
situations; if a copy of advice is tendered by the Commission, the
same shall be furnished to the government servant along with a
copy of the order passed in the case by the authority making the
order. The second situation is that if a copy of the advice tendered
by the Commission has not been accepted, a copy of which along
with a brief statement of the reasons for such non-acceptance shall
also be furnished to the government servant along with a copy of
the order passed in the case, by the authority making the order. In
our view, the language employed in Rule 32, namely "along with a
copy of the order passed in the case, by the authority making the
order" would mean the final order passed by the authority imposing
penalty on the delinquent government servant.
18. Article 320 of the Constitution deals with the functions
of Public Service Commission and provides that it shall be the duty
of the Union and the State Public Service Commissions to conduct
examinations for appointments to the services of the Union and the
services of the State respectively.
19. Article 320(3)(c ) reads:-
“320.(3) (c) on all disciplinary matters affecting a person serving
under the Government of India or the Government of a State in a
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civil capacity, including memorials or petitions relating to such
matters;”
..
..
Provided that the President as respects the all-India
services and also as respects other services and posts in connection
with the affairs of the Union, and the Governor, as respects other
services and posts in connection with the affairs of a State, may
make regulations specifying the matters in which either generally,
or in any particular class of case or in any particular circumstances,
it shall not be necessary for a Public Service Commission to be
consulted.
20. A Constitution Bench of this Court in the case of State
of U.P. vs Manbodhan Lal Srivastava , 1958 SCR 533, considered
the question as to whether the consultation of the Commission
under Article 320(3)(c) is mandatory and binding on the appropriate
authority.
21. The arguments that the non-compliance of Article
320(3)(c) vitiates the order passed by the appropriate authority have
been repelled by the Court at SCR.pp 543-544:-
"7. ........ Perhaps, because of the use of word "shall" in
several parts of Art. 320 , the High Court was led to assume that
the provisions of Art. 320(3)(c) were mandatory, but in our
opinion, there are several cogent reasons for holding to the
contrary. In the first place, the proviso to Art. 320 , itself,
contemplates that the President or the Governor, as the case
may be,
"may make regulations specifying the matters in which
either generally, or in any particular class of case or in particular
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circumstances, it shall not be necessary for a Public Service
Commission to be consulted."
The words quoted above give a clear indication of the
intention of the Constitution makers that they did envisage
certain cases or classes of cases in which the Commission need
not be consulted. If the provisions of Art. 320 were of a
mandatory character, the Constitution would not have left it to
the discretion of the Head of the Executive Government to undo
those provisions by making regulations to the contrary.
If it had been intended by the makers of the Constitution
that consultation with the Commission should be mandatory, the
proviso would not have been there, or, at any rate, in the terms
in which it stands. That does not amount to saying that it is open
to the Executive Government completely to ignore the existence of
the Commission or to pick and choose cases in which it may or
may not be consulted.
Once, relevant regulations have been made, they are
meant to be followed in letter and in spirit and it goes without
saying that consultation with the Commission on all disciplinary
matters affecting a public servant has been specifically provided
for, in order, first, to give an assurance to the Services that a
wholly independent body, not directly concerned with the
making of orders adversely affecting public servants, has
considered the action proposed to be taken against a particular
public servant, with an open mind; and, secondly, to afford the
Government unbiased advice and opinion on matters vitally
affecting the morale of public services.
It is, therefore, incumbent upon the Executive Government,
where it proposes to take any disciplinary action against a public
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servant, to consult the Commission as to whether the action
proposed to be taken was justified and was not in excess of the
requirements of the situation.
8.Secondly, it is clear that the requirement of the
consultation with the Commission does not extend to making the
advice of the Commission on those matters, binding on the
Government. Of course, the Government, when it consults the
Commission on matters like these, does it, not by way of a mere
formality, but, with a view to getting proper assistance in
assessing the guilt or otherwise of the person proceeded against
and of the suitability and adequacy of the penalty proposed to
be imposed.
If the opinion of the Commission were binding on the
Government, it may have been argued with greater force that
non- compliance with the rule for consultation would have been
fatal to the validity of the order proposed to be passed against a
public servant. In the absence of such a binding character, it is
difficult to see how non- compliance with the provisions of Art.
320(3)(c) could have the effect of nullifying the final order
passed by the Government.
9.Thirdly, Art. 320 or the other articles in Chapter II of
Part XIV of the Constitution deal with the constitution of the
Commission and appointment and removal of the Chairman or
other members of the Commission and their terms of service as
also their duties and functions. Chapter II deals with the relation
between Government and the Commission but not between the
Commission and a public servant.
Chapter II containing Art. 320 does not, in terms, confer
any rights or privileges on an individual public servant nor any
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constitutional guarantee of the nature contained in Chapter I of
that Part, particularly Art. 311. Article 311 , therefore, is not, in
any way, controlled by the provisions of Chapter II of Part XIV,
with particular reference to Art. 320."
Finally, at page SCR p.547 it was held as under:
"We have already indicated that Art. 320(3)(c) of the
Constitution does not confer any rights on a public servant so
that the absence of consultation or any irregularity in
consultation, should not afford him a cause of action in a court
of law, or entitle him to relief under the special powers of a High
Court under Art. 226 of the Constitution or of this Court
under Art. 32. It is not a right which could be recognized and
enforced by a writ.
On the other hand, Art. 311 of the Constitution has been
construed as conferring a right on a civil servant of the Union or
a State, which he can enforce in a court of law. Hence, if the
provisions of Art. 311 , have been complied with in this case -
and it has hot been contended at any stage that they had not
been complied with - he has no remedy against any irregularity
that the State Government may have committed.
Unless, it can be held, and we are not prepared to hold,
that Art. 320(3)(c) is in the nature of a rider or proviso to Art.
311 , it is not possible to construe Art. 320(3)(c) in the sense of
affording a cause of action to a public servant against whom
some action has been taken by his employer."
The decision of the Constitution Bench
in Srivastava (supra) was reiterated by a three Judge Bench of this
Court in the case of Ram Gopal Chaturvedi vs. State of Madhya
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Pradesh , 1969 (2) SCC 240, it was held in paragraph 7 of the
judgment as under:-
"7.It was argued that the impugned order was invalid as it
was passed without consulting the State Public Service
Commission under Article 320(3)(c) of the Constitution. There is
no merit in this contention. The case of State of U.P. v. M.L.
Srivastava 1958 SCR 533 decided that the provisions of Article
320(3)(c) were not mandatory and did not confer any rights on
the public servant and that the absence of consultation with the
State Public Service Commission did not afford him a cause of
action."
23.Counsel for the respondent contended that non-
supply of a copy of the advice tendered by the 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 the case of State Bank of India v. D.C. Aggarwal , (1993)
1 SCC 13, 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 the
case of Managing Director, ECIL, Hyderabad vs. B.Karunakar ,
(1993) 4 SCC 727, 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.
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25.In view of the law settled by the Constitution Bench of
this Court in the case of Srivastava (supra) 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
the UPSC, if any, does not afford the delinquent government servant
a cause of action in a court of law.”
29. In the present case, the disciplinary authority is not under any
requirement to get the advice of the TNPSC; In fact, he did not ask for any
such advice, and it was only the appellate authority that sought such advice
without referring to any legal requirement warranting such seeking of an
opinion from TNPSC. In the absence of any such legal requirement, the
appellate authority's reliance on a hidden TNPSC opinion does not, by itself,
invalidate the initial punishment order of the disciplinary authority. The writ
petitioner had not shown any prejudice caused to him because of such non-
supply of the opinion given by the TNPSC to the appellate authority. There is
a serious lapse on the part of the appellate authority. We have already
concluded that the order of the appellate authority is bereft of reasons. The
action of the appellate authority is therefore bad in law for this second
reason as well.
30. It would have been very easy for us to have relegated the writ
petitioner to the appellate authority for a fresh consideration of his appeal.
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However, considering the fact that the disciplinary proceedings that
commenced with the suspension of the writ petitioner in 2004 had continued
in litigious route for all these years till 2026, we deem it appropriate not to
remit the matter to the appellate authority and instead, ascertain the
correctness of the order of the learned single Judge in finding fault with the
conclusion of the disciplinary authority regarding the misconduct committed
by the writ petitioner.
31. It is long settled legal proposition that the power of judicial
review, of the Constitutional Courts, is only an exercise of evaluation of the
decision making process and not the merits of the decision itself. It is for the
Writ Court to ascertain as to whether there is fairness in treatment and not
to verify whether there is fairness of conclusion. The Writ Court can interfere
with the disciplinary proceedings held against the delinquent officer, only if
it is inconsistent with the rules of natural justice or it is in violation of the
statutory rules prescribed in the mode of enquiry or if the conclusion or
finding arrived at by the disciplinary authority is based on no evidence. Also,
if the conclusion arrived at by the disciplinary authority is found to be
perverse upon consideration of the evidence or it suffers from patent error on
the face of record, the power of judicial review can be exercised. It cannot be
extended to the examination of correctness or reasonableness of a decision
of fact finding authority.
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32. The Writ Court in the exercise of its jurisdiction under Article
226 of the Constitution of India would not interfere with the findings of fact
arrived at in the departmental enquiry proceedings except in a case of mala
fides or perversity, i.e., where there is no evidence to support a finding or
where a finding is such that no man acting reasonably and with objectivity
could have arrived at that findings and so long as there is some evidence to
support the conclusion arrived at by the departmental authority, the same
has to be sustained.
33. Useful reference can be made in this regard to the judgment of
the Hon'ble Apex Court in Deputy General Manager (appellate authority)
and others Vs. Ajai Kumar Srivastava reported in (2021) 2 SCC 612;
Ex-Const/DVR Mukesh Kumar Raigar Vs. Union of India and others
reported in (2023) 11 SCC 159; Indian Oil Corporation and others Vs.
Ajit Kumar Singh and another reported in (2023) 19 SCC 102 and
Apparel Export Promotion Council Vs. A.K.Chopra reported in (1999) 1
SCC 759 .
34. The three Judges Bench of the Hon'ble Supreme Court in the
case of Pravin Kumar Vs. Union of India reported in ( 2020) 9 SCC 471
had reiterated the above proposition and had held as under:-
“ I. Scope of Judicial Review in Service Matters
25.Learned counsel for the appellant spent considerable
time taking us through the various evidencesonrecord with the
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intention of highlighting lacunas and contradictions. We feel that
such an exercise was in vain, as the threshold of interference in the
present proceedings is quite high. The power of judicial review
discharged by Constitutional Courts under Article 226 or 32, or
when sitting in appeal under Article 136 , is distinct from the
appellate power exercised by a departmental appellate authority. It
would be gainsaid that judicial review is an evaluation of the
decision making process and not the merits of the decision itself.
Judicial Review seeks to ensure fairness in treatment and not
fairness of conclusion. It ought to be used to correct manifest errors
of law or procedure, which might result in significant injustice; or in
case of bias or gross unreasonableness of outcome.
26.These principles are succinctly elucidated by a three-
judge Bench of this Court in BC Chaturvedi v. Union of India4 in the
following extract:
“12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. Power of
judicial review is meant to ensure that the individual receives fair
treatment and not to ensure that the conclusion which the
authority reaches is necessarily correct in the eye of the court.
When an inquiry is conducted on charges of misconduct by a
public servant, the Court/Tribunal is concerned to determine
whether the inquiry was held by a competent officer or whether
rules of natural justice are complied with. Whether the findings
or conclusions are based on some evidence, the authority
entrusted with the power to hold inquiry has jurisdiction, power
and authority to reach a finding of fact or conclusion. But that
finding must be based on some evidence. Neither the technical
rules of Evidence Act nor of proof of fact or evidence as defined
therein, apply to disciplinary proceeding. When the authority
accepts that evidence and conclusion receives support therefrom,
the disciplinary authority is entitled to hold that the delinquent
officer is guilty of the charge. The Court/Tribunal in its power of
judicial review does not act as appellate authority to reappreciate
the evidence and to arrive at its own independent findings on the
evidence. The Court/Tribunal may interfere where the authority
held the proceedings against the delinquent officer in a manner
inconsistent with the rules of natural justice or in violation of
statutory rules prescribing the mode of inquiry or where the
conclusion or finding reached by the disciplinary authority is
based on no evidence. If the conclusion or finding be such as no
reasonable person would have ever reached, the Court/Tribunal
may interfere with the conclusion or the finding, and mould the
relief so as to make it appropriate to the facts of each case.
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13.The disciplinary authority is the sole judge of facts.
Where appeal is presented, the appellate authority has
coextensive power to reappreciate the evidence or the nature of
punishment. In a disciplinary inquiry, the strict proof of legal
evidence and findings on that evidence are not relevant.
Adequacy of evidence or reliability of evidence cannot be
permitted to be canvassed before the Court/Tribunal. In Union of
India v. H.C. Goe this Court held at p.728-29 that if the
conclusion, upon consideration of the evidence reached by the
disciplinary authority, is perverse or suffers from patent error on
the face of the record or based on no evidence at all, a writ of
certiorari could be issued.”
27.These parameters have been consistently reiterated by
this Court in a catena of decisions, including:
( i) State of Tamil Nadu v. S Subramaniam ,
( ii) Lalit Popli v. Canara Bank ,
( iii) Himachal Pradesh State Electricity Board Ltd v. Mahesh
Dahiya ,
28.It is thus well settled that the Constitutional Courts
while exercising their powers of judicial review would not
assume the role of an appellate authority. Their jurisdiction is
circumscribed by limits of correcting errors of law, procedural
errors leading to manifest injustice or violation of principles of
natural justice. Put differently, judicial review is not analogous to
venturing into the merits of a case like an appellate authority.”
35. In the present case, the learned single Judge had approached
the issue by embarking upon an enquiry to find out as to whether the
findings arrived at by the disciplinary authority were based on the
acceptable evidence or not. The permissible enquiry is only whether there
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was no evidence on which the findings were arrived at or whether there was
any perversity in the findings and not whether the evidence was acceptable
or not, unless the question of admissibility is raised. The question of
adequacy of evidence also could not have been gone into to conclude that the
evidence was insufficient to hold that the delinquent officer guilty. Exactly,
this is the lapse committed by the learned single Judge, as she has gone into
the question of sufficiency or adequacy of evidence to set aside the findings
of fact itself. This approach of the learned single Judge is quite contrary to
the settled jurisprudence laid down by the Hon'ble Supreme Court in the
decisions referred to supra and also reiterated in the judgment of the Hon'ble
Apex Court in General Manager (Operations) State Bank of India and
another Vs. R.Periyasamy reported in (2015) 3 SCC 101 .
36. The Hon'ble Apex Court has reiterated the settled legal
principle in administrative law that the onus of proof rests upon the party,
alleging the invalidity of an order as there is a presumption always attached
to the decision or executive order that it is properly and validly made as
expressed in the maxim omnia prasesumuntur rite esse acta , which means
“all things are presumed to be done in due form”.
37. In the present case, the Tribunal for disciplinary proceedings
and also the Disciplinary Authority have referred to all the relevant materials
on record and have come to a particular conclusion that the delinquent
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officer is guilty for the misconduct of acquiring wealth disproportionate to
the known sources of income. Before the enquiry tribunal, as many as 8
witnesses were examined and 11 Exhibit were marked by the prosecution,
while none was presented by the writ petitioner. He was only seeking to
elucidate some contradictions and minor variations in the manner of arriving
at his income, like, omitting to add bonus and few months salary; alleged
miscalculation of the agricultural income (which does not make any huge
difference or eradicate the excess income). The disciplinary authority had
passed a very detailed and reasoned order to conclude that the misconduct
of the delinquent officer is proven. Against this order of the fact finding
authority, the Writ Court cannot and does not sit as an appellate authority.
It is held impermissible by the Hon'ble Apex Court in a long line of
authorities mentioned supra. In her order, the learned single Judge sits as
an appellate authority, reviews the entire evidence and arrives at her own
conclusion that the evidence available on record is not sufficient to record a
finding of guilt. Such finding is not sustainable and is liable to be interfered
with.
38. The learned single Judge had gone wrong in going into the
correctness or the truth of the charges by taking over the functions of the
disciplinary authority. The standard of proof in the disciplinary proceedings
is that of preponderance of probabilities and not a proof beyond reasonable
doubt, or for the writ Court testing the correctness during its Judicial review
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is “some evidence to prove the charge” alone.
39. In the present case, there is more than some evidence, rather
enough evidence on the basis of which the disciplinary authority has arrived
at a conclusion that the delinquent officer had acquired wealth
disproportionate to the known sources of income. Picking hole in such
conclusion on re-appreciation of evidence by the learned single Judge, acting
as an appellate authority, is not permissible in law, and it is incorrect. What
is required is only that the Writ Court shall ensure that there is procedural
fairness.
40. In this case, the delinquent officer has not pleaded any
violation of the principles of natural justice and it is not even his case that
the findings are based on no evidence or there is violation of any statutory
rules prescribed in the mode of enquiry or that the authorities were actuated
by some extraneous consideration or they failed to reach a fair decision or
they allowed themselves to be influenced by irrelevant considerations or the
conclusion of the disciplinary authority on the face of it is so wholly arbitrary
and capricious.
41.While exercising our judicial review in a disciplinary proceeding,
the first rule is one of restraint. In this case, from the available materials, we
are more than satisfied that the determination of the disciplinary authority
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that a misconduct has been committed, is supported by the required
evidence and the materials available on record do not point out any
perversity in the said conclusion of the disciplinary authority. The finding in
the enquiry is certainly based on no evidence and therefore, there can be no
interference by the Writ Court in such conclusion of the disciplinary
proceedings. We cannot re-appreciate the evidences. We cannot go into the
adequacy of the evidence or the reliability of the evidence and there is
certainly some legal evidence on which the findings have been based and
there is no error on fact, much less a grave error for an interference by the
Writ Court and the proportionality of the punishment also does not shock
our conscience. We are guided in this position by the judgment of the
Hon'ble Apex Court in Union of India and others Vs. P.Gunasekaran
reported in (2015) 2 SCC 610; and Director General of Police, Railway
Protection Force and others Vs. Rajendra Kumar Dubey reported in
(2021) 14 SCC 735; and State of Karnataka and another Vs.
N.Gangaraj reported in (2020) 3 SCC 423 . We are unable to sustain the
order of the Learned Single Judge for all the reasons mentioned above. The
reasonings of the writ Court to interfere with the order of punishment are
found to be contrary to the settled jurisprudence governing disciplinary
proceedings, warranting an interference in this writ appeal.
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42.In fine, the Writ Appeal stands allowed. The order of the
Learned Single Judge is set aside. No costs. Consequently, connected
Miscellaneous Petition is closed.
[M.D.I.,J] & [N.D.K.,J]
09.09.2026
Index :Yes/No
Internet :Yes/No
mm
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M.DHANDAPANI, J
AND
N.DILIP KUMAR, J
mm
order made in
W.A(MD)No.1853 of 2021
09.09.2026
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