Holding

The amendment to Rule 12 empowers heads of departments to impose minor penalties, rendering the Registrar competent to initiate disciplinary proceedings, and the delay cannot be faulted on the appellant.

Summary

The Registrar of Co‑operative Societies (appellant) was directed by the Tamil Nadu Government to discipline Joint Registrar F.X. Fernando (respondent) for alleged irregularities. The vigilance department delayed its inquiry, after which the Government amended Rule 12 of the Tamil Nadu Civil Service (Classification, Control & Appeal) Rules to empower heads of departments to impose minor penalties. The Registrar issued a charge memo and appointed an enquiry officer, but the Administrative Tribunal set aside the proceedings, holding the Registrar lacked such power and that there was an undue delay. The Supreme Court held that the amendment to Rule 12 indeed conferred the requisite authority on heads of departments, making the Registrar competent to initiate proceedings under Rule 17(b), and that the delay was attributable to the vigilance department, not the appellant. Consequently, the Tribunal’s order was set aside and the appeal allowed.

Issues considered

Whether the amendment to Rule 12 of the Tamil Nadu Civil Service Rules confers power on heads of departments, including the Registrar, to impose minor penalties and thus initiate disciplinary proceedings under Rule 17(b).
Whether the delay in initiating departmental proceedings can be attributed to the appellant or to the vigilance department.
Whether Art. 311(1) of the Constitution restricts initiation of disciplinary proceedings to the appointing authority in the absence of a specific rule.

Legislation cited

Constitution of Indias. Art. 311(1)
Tamil Nadu Civil Service (Classification, Control & Appeal) Ruless. Rule 12, s. Rule 17(b), s. Rule 8

Subjects

disciplinary proceedingsminor penaltiesdepartmental inquiryrule amendmentdelayArt. 311heads of departmentTamil Nadu Civil Service Rules

Judgment

' THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
MADRAS AND ANR.
A

v.
F.X. FERNANDO

FEBRUARY 15, 1994
B
(M.N. VENKATACHALIAH, C.J., S. MOHAN AND
FAIZAN UDDIN, JJ.)

,,,- Tamil Nadu Civil Service (Classification Control & Appeal) Rules
Rules 12 & 17(b )-Proceedings under Rule 17(b) initiated by the appellant c
as Head of Department-Power assumed under amended Rule 12--Failure
of Tribunal to take note of the said amendment effect of-Held proceedings
not vitiated.

Delay in submitting report by an authority-Consequential delay in
issuing of charge memo-Different authorities involved-Authority initiating D
proceedings not to be faulted.
~
The Director, Vigilance and Anti-Corruption Depa~ent received
certain complaints against the Respondent alleging some irregularities
committed by the respondent in the capacity of Joint Registrar/Special
Officer or a Cooperative whole sale store. On receipt or the said com-
E
plaints, the Director, Vigilance Department approached the appellant for
inquiry. The appellant furnished all the relevant material to the Vigilance
Department and requested them to complete the enquiry by 31.12.1987.
However, the enquiry could not be completed within that time and before
-r the report or the said enquiry could be submitted, the State Government F
amended Rule 12 of Tamil Nadu Civil Service (Classiftcation, Control and
appeal) Rules and inserted sub- Rule(2) therein. By virtue of the said
amendment, the power to impose minor penalties came to be conferred on
. ,. the Heads of the. Departments also.

On receipt of the report, the State Government directed the appel- G
lant to take disciplinary action against the respondent. Accr,rdingly, the
appellant initiated disciplinary proceedings against the respondent, asking
-( him to appear before an enquiry officer. The respondent, initially par-
ticipated in the proceeding but later on, represented to the appellant that
the enquiry officer was biased. The appellant rejected the representations H
959
960 SUPREME COURT REPORTS (1994) 1 S.C.R.

A and directed him to appear before the enquiry officer. The Respondent
approached the Administrative Tribunal for quashing the order of the
appellant requiring him to appear before the enquiry officer. The Tribunal
set aside the order impugn~d before it and overlooking the amendment in
Rule 12, took the view that the proceedings under Rule 17(b) could be
initiated only by a person empowered to impose minor penalties specified
B in that Rule, and that since the appellant was not empowered to do so, he
was not competent to initiate disciplinary proceedings against the respon-
dent. The Tribunal also found that there was a long delay in initiating "!'

departmental proceedings. ~

c The appellant in its appeal to this Court challenged the correctness
of the aforesaid finding on the ground that the Tribunal had completely
ignored G.O.Ms. 185 dated 17.3.8& by which the Government had delegated
the power to impose minor penalties to the Head of Departments and that
the Government itself, by a subsequent G.O.Ms. 371 dated 20.12.1988, had
directed the appellant to frame charges against the respondent and initiate
D enquiry.
·'

..It-
Allowing the Appeal, this Court

HELD: 1. The finding of the Tribunal that the appellant is not
empowered even to impose the minor penalties and therefore initiation of
E
disciplinary proceedhtg by him by issue of a charge memo and proc:.eeding
further by appointment of Enquiry Officer is beyond his powers and
therefore on this ground alone the pi:oceedings have to be set aside, is
clearly wrong since it has not taken note of the amendment made to Tamil
Nadu Civil Service (Classification, Control & Appeal) Rules amending ~

F Rule 12 whereunder the Heads of the Departments like the appellant are
empowered to impose minor penalties. Moreover, the appellant did not
initiate the disciplinary action on his own. The State Government directed
the appellant to take disciplinary action against the respondent. Accord- ,,...
i~gly he issued the charge memo. [963-C·E]

G P. V. Srinivasa Sastry v. Comptroller and-Auditor General, A.I.R. (1993)
S.C. 1321, referred to.
~
2. The rmding that there is long delay in initiating of departmental
proceedings cannot be supported because in this case the Directorate of
H Vigilance and Anti-Corruption had not been prompt. Therefore, the appel-

, '
\

f
REGISTRAR OF CO-OP. SOCIETIES v. F.X. FERNANDO [MOHAN, J.] 961

lant cannot be faulted. (96'1-B] A
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 832 of
1994.

From the Judgment•and Order dated 19.3.91 of the Tamil Nadu
Administrative Tribunal, Madras in O.A. No. 1294 of 1990 B
P.R. Seetharaman and P.N. Ramalingam for the Appellants.

r Sundra Varadan, A. T.M. Sampath and Ms. Pushpa Rajan for the
Respondent.

The Judgment of the Court was delivered by
c
MOHAN, J. 1. Leave granted.

The facts leading to present appeal are as under:
-,;.

The respondent joined the Co-operative Department as Deputy
D
.....
Registrar in the year 1969. He was promoted as Joint Registrar in 1981.
He became the Joint Registrar/Special Officer of the Park Town Co-opera-
tive Whole-sale Stores Ltd. in 1984.

2. Durmg his tenure as the Joint Registrar/Special Officer of Park E
Town Co-operative Whole Sale Stores Ltd. complaints were received by
the Director, Vigilance and Anti-Corruption Department. The said
Department approached the Registrar, Co- operative Societies to furnish
the details to investigate into the alleged irregularities. Thereupon, the
Registrar furnished the relevant material. The Vigilance and Anti-Corrup-
tion Department was requested to complete the enquiry on or before F
31.12.1987. However, no progress was made in that direction.

' '~
3. The Government of Tamil Nadu by its G.O. Ms. No.185 Personnel
and Administrative Reforms Department dated 17.3.1988 amended Rule
12 of the Tamil Nadu Civil Service {Classification, Control and ~ppeal)
G
Rules. Under the said G.O., the powers imposing minor penalty came to
be conferred on the Heads of the Departments.
..(_
4. Finally, the Vigilan~e and Anti-Corruption department submitted
its detailed report. On an exawination l ·f the same, the Government issued
G.O. Ms. No. 371dated20.12.!')88 d1r~c:.ing the Registrar to take discipli- H
i
962 SUPREME COURT REPORTS [1994) 1 S.C.R.

A nary action against the respondent. Thereupon the Registrar issued the
charge memo dated 20.3.1989. The Registrar (Marketing, Planning and
Development) was appointed as Enquiry Officer to conduct the enquiry.
The respondent appeared before the Enquiry Officer from 24.1.1990 to
20.3.1990. He also cross-examined one witness.
B 5. On 20.3.1990, he made a representation to the appellant alleging
bias against the Enquiry Officer. The complaint was rejected. Again,
another representation to the same effect was made. That was also rejected
on 8.5.1990 and the Registrar called upon the respondent to appear before """"(

the Enquiry Officer. At this stage, the respondent moved an application
c 0.A. No. 1294 of 1990 before the Tamil Nadu Administrative Tribunal to
quash the order dated 8.5.1990 calling him by Registrar to appear before
the Enquiry Officer.

6. By the impugned order dated 19.3.1991, the Tribunal held that the
proceedings under Rule 17(b) were liable to be set-aside on the. ground 4-
D that the Registrar of Co-operative Societies was not empowered to impose
J,..
even minor penalty. However, it was open to the Government as Discipli-
nary Authority to initiate fresh action by issuing a charge memo and
conclude the proceedings within a period of six months. Aggrieved by this
order, the present civil appeal has come to be preferred.
E
7. The learned counsel for the appellant would urge that the Tribunal
has completely ignored G.O. Ms. 185dated17.3.1988 by which the Govern-
ment had delegated the power to the Heads of the Departments to impose
minor penalties. 'T'

F 8. Besides, by G.O. Ms. 371 dated 20.12.1988, the Government
directed the Registrar to frame charges against the respondent and to
initiate enquiry. Without regard to this G.O., the Tribunal has held as
though Registrar on his own under Rule 17(b) has issued a charge memo ~, <

for which there was no power.
G 9. The learned counsel for the respondent would submit that if the
Disciplinary Authority is the Government, the Registrar is not competent
tC) frame charges and direct eaquiry proceedings. >-
10. We will now proceed to consider whether the impugned order of
H the Tribunal is correct. The finding of the Tribunal is as follows:
REGISTRAROFCO-OP.SOCIETIES v. F.X.FERNANDO(MOHAN,J.] 9b3

"The Joint Registrar of Co-operative Societies is a state service A
officer ·and the disciplinary authority is the State Government.
Therefore, proceedings under Rule 17(b) of the T.N.C.S. (CA)
Rules can be initiated only by the person empowered to impose
the penalties specified in that rule. The rules also contain a
provision that an authority competent to impose the penalties
mentioned in Rule 17(a) may institute a disciplinary action in
B
respect of major penalties also. However, in this case, the Registrar
of Co-operative Societies is not empowered even to impose the
minor penalties and therefore initiation of disciplinary proceeding by
him by issue of a charge memo and proceeding further by appoint-
ment of Enquiry Officer is beyond his powers and therefore on this c
ground alone the proceedings have to be set aside. It is open to the
disciplinary authority viz., the Government to initiate action afresh
by issuing the charge memo and after obtaining the written state-
ment of defence of necessary by designating the Enquiry Officer."
(emphasis supplied)
+ D
11. This finding is clearly wrong since it has not taken note of the
amendment made to Tamil nadu Civil Service (Classification, Control and
Appeal) Rules amending Rule 12 whereunder the Heads of the Depart-
ments are enable to impose minor penalties. We will now extract both
original Rule 12 and the notification issued in G.O. Ms. No. 185, Personnel E
and Administrative Reforms (Personnel -N) Department, dated 17.3.1988
amending the said rule:
..
"12. The State Government may impose any of the penalties
specified in items (i) and (iii) to (viii) in rule 8 on members of the
State Service: F

Provided that if the Governor of Madras is himself the appointing
authority for any service or a class or category thereof; he may
himself impose any of the said penalties on members of that
service, class or category, as the case may be:
G
Provided further that in the case of the members of the Services
SJ?ecified in column (I) the of Appendix IV to these rules, the
authority which may impose any of the penalties mentioned in
items (i), (iii) so far as it relates to withholding of increments and
(v) in rule 8 shall be the authorities specified in the corresponding H
964 SUPREME COURT REPORTS [1994) 1 S.C.R.

A entries in columns (2), (3) and (4) thereof."

"NOTIFICATION

In exercise of the powers conferred by the proviso to Article
309 of the Constitution of India, the Governor of Tamil Nadu
B hereby makes the following amendment to the Tamil Nadu Civil
Services (Classification, Control and Appeal) Rules, in volume-I
of the Tamil Nadu Service Manual, 1977: -

AMENDMENT

c In the said Rules, Rule 12 shall be numbered as sub rule (1)
of that rule and after sub-rule (1) as so re-numbered, the following
sub-rule shall be added; namely: -

"(2) Notwithstanding anything contained in these rules and in
Appendix IV, the Heads of Departments concerned may impose
D any of the penalties mentioned in items (i), (iii) in so far as it
relates to withholding to increments and (v) in rule 8 on all
members of the State Service other than such members who are
immediately below such Heads of Departments."

l].,- The punishments that are referred to above are found in Rule 8
E
of Madras Civil Services (Classification, Control and Appeal) Rules as
under:
11
8. (i) Censure.

(iii) Withholding of increments or promotion, including stoppage
F
at an efficiency bar.

(v)(a) Recovery from pay of the whole or part of any pecuniary
loss caused to the State Government or the Central Government
or to a local body by negligence or breach of orders, or
G
(b) Recovery from pay to the extent necessary of the monetary
)--
value quivalent to the amount of increments ordered to be with-
held, where such an order cannot be given effect to.

(c) Recovery from pay to the extent necessary of the monetary
H value equivalent to the amount of reduction to a lower stage in a
REGISTRAR OF CO-OP. SOCIETIES v. F.X. FERNANDO (MOHAN, J.] 965

time-scale ordered where such an order cannot be given effect to. A
Explanation- In cases of stoppage of increment with cumulative
effect, the monetary value equivalent to three times the amount of
increments ordered to be withheld may be recovered.

13. This is not a case in which a Registrar has taken disciplinary B
action on his own. The Government of Tamil Nadu by G.O. Ms. 371 dated
20.12.1988 directed the appellant to take disciplinary action against the
respondent for the following irregularities:

"He appointed candidates for the post of Salesmen to the newly C
opened fair prices shops of Park Town Co-operative Whole Sale
Stores, Madras during 1984-85 directly without being sponsored
by the Employment Exchange and thereby violated G.O. Ms. No.
1138, Labour and Employment Department, dated 25.5.1978, and
the instructions given by the Registrar of Co-operative Societies in
Lr. No. 149614/84 PDS2, dated 26.9.1984. D
He had violated departmental it.1structions and purchased con-
sumer goods such as rice, tamarind and chillies from traders at
higher rates without placing orders through joint purchase com-
mittee meetings as prescribed by the Registrar of Co-operative E
Societies circulars etc. and thereby conferred undue pecuniary
advantages to the private traders."

14. It was on the basis of this G.O., on 20.3.1989 the Registrar issued
the charge memo. In this connection, it is worthwhile to refer to a recent
decision of this Court reported in AIR {1993) SC 1321 P. V. Srinivasa Sastry F
v. Comptroller and Auditor General. The relevant observations at pages
1323-24 are as under:

"....But Art. 311(1) does not say that even the departmental
proceeding must be initiated only by the appointing authority.
However, it is open to Union of India or a State Government to G
make any Rule prescribing that even the proceeding against any
delinquent officer shall be initiated by an officer not subordinate
to the appointing authority. Any such Rule shall not be inconsistent
with Art.. 311 of the Constitution because it will amount to provid-
ing an additional safeguard or protection to the holder of a civil H
966 SUPREME COURT REPORTS [1994) 1 S.C.R.

A post. But in absence of any such Rule, this right or guarantee does
not flow from Art. 311 of the Constitution. It need not be pointed
out that initiation of a departmental proceeding per se does not
visit the officer concerned 'With any evil consequences, and the
framers of the Constitution did not consider it necessary to guaran-
tee even that to holders of civil posts under the Union of.India or
B under the State Government. At the same time this will not give
right to authorities having the same rank as that of the officer
against whom proceeding is to be initiated to take a decision
whether any such proceeding should be initiated. In absence of a
Rule, any superior authority who can be held to be the controlling
c authority, can initiate such proceeding.

In the case of State Madhya Pradesh v. Shardul Singh, [1970) 1
sec 108, the departmental enquiry had been initiated against the
Sub-Inspector of Police by the Superintendent of Police, who sent
his inquiry report to the Inspector-General, who was the appoint-
D ing authority. The Inspector-General of Police dismissed the of-
ficer concerned from the service of the State Government. That
order was challenged on the ground that the initiation of the
departmental enquiry by the Superintendent of Police was against
the mandate of Art. 311(1) of the Constitution. This contention
E was accepted by the High Court. But this Court said:

"We are unable to agree with the High Court that the guarantee
given under Art. 311(1) includes within itself a further guarantee
that the disciplinary proceedings resulting in dismissal or removal
F of a civil servant should also be initiated and conducted by the
authorities mentioned in that Article." .....

Although Art. 311 of the Constitution does not speak as to who
shall initiate the disciplinary proceedings but, as already stated
above, that can be provided and prescribed by the Rules. But if
G no Rules have been framed, saying as to who shall initiate the
departmental proceedings, then on the basis of Art. 311 of the
Constitution it cannot be urged that it is only the appointing
authority and no officer subordinate to such authority can initiate
the departmental proceeding. In the present case, it was not
H brought to our notice that any Rule prescribes that the Accountant
REGISTRAR OF CO-OP. SOCIETIES v. F.X. FERNANDO [MOHAN,J.] 967

General, who is the appointing authority, alone could have initiated A
a departmental proce.~ding."

15. Then again the finding that there is long delay in initiating of
departmental proceedings cannot be supported because in this case the
Directorate of Vigilance and Anti-Corruption had not been prompt.
Therefore, the appellant cannot be faulted. Accordingly, we set-aside the B
order of the Tribunal and direct that the matter be proceeded with from
the stage at which it was left. It is a settled principle of law that justice
must not only be done but must be seen to be done. Therefore, we would
direct that another Enquiry Officer be appointed in order to remove any
apprehension of bias on the part of respondent. The Civil Appeal will stand
allowed with no cost.

- J.B. Appeal allowed.

t