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IN

W.P.No.30961 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20 /12/2019

CORAM

THE HON'BLE MR.A.P.SAHI, CHIEF JUSTICE

and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD

Writ Petition No.30961 of 2019

A.Ananthakumar ... Petitioner

Vs

1. The Registrar General,

High Court Madras, Chennai 104.

2. The District Judge,

Thiruvallur, Thiruvallur District.

3. The District Munsif-cum-Judicial Magistrate,

O/o.the District Munsif-cum-Judicial Magistrate
Court,
Gummidipoondi, Thiruvallur District. ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of certiorarified Mandamus, calling
for concerned records relating to the charge memo contained order
Dis.No.2415 of 2019 dated 01.10.2019 passed by the 3rd respondent
and to quash the same and consequently direct the 3rd respondent to

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re-instate the petitioner in service with all consequential, monetary

and other service benefits.
For petitioner ... Mr.M.Gnanasekar

For respondent ... Mr.C.T.Mohan & Mr.B.Vijay

(for R1 & R3)
------
ORDER

Subramonium Prasad,J.

The short but important question of law which arises in this

writ petition is whether an authority higher to the delinquent officer

can suspend the delinquent officer when the higher authority is not

the appointing authority.

2. The facts which arise in this case lies in a very narrow

compass. The writ petitioner was initially appointed as senior bailiff

in Thiruvallur District. He was promoted as a Junior Assistant. A

memo dated 21.05.2019 from the office of the District Munsif-cum-

Judicial Magistrate, Gummidipoondi, Tiruvallur District, was served

on him alleging that the petitioner had neglected the following

assignments:-

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W.P.No.30961 of 2019

1. Charge sheet register not updated.

2. Summons/Notice not issued to the accused/parties.

3. CMP's have not been rounded off in CMP Register.

4. Petitions u/s 317 Crp c and Admission petitions have not been

assigned with CMP Number.

5. Cases listed for hearing were not prepared daily.

3. The writ petitioner submitted his explanation and he was

served with another memo by the District Munsif-cum-Judicial

Magistrate, Gummidipoondi, on 17.07.2019, stating that he is

lethargic and has been negligent in performing his work. The memo

stated that about 30 bundles were not indexed and the writ

petitioner would have to place these records before the officer,

after indexing the same. The memo stated that the salary for the

month of August 2019 would not be paid until the 30 bundles are

indexed. District Munsif-cum-Judicial Magistrate, Gummidipoondi,

issued memo dated 21.08.2019, calling for an explanation from the

delinquent officer as to why disciplinary proceedings should not be

taken against him for not performing his work properly. The writ

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W.P.No.30961 of 2019

petitioner was to provide an explanation within seven days from the

date of receipt of the memo issued against him.

4. On 01.10.2019 the District Munsif-cum-Judicial Magistrate,

issued a charge memo against the writ petitioner under Rule 17(b) of

the Tamil Nadu Civil Services (Discipline and Appeal) Rules

(hereinafter referred to as Discipline and Appeal Rules), on the

following charges:-

"That you Thiru. P.Anantha Kumar Junior Assistant, District

Munsif Cum Juducial Magistrate Court, Gummidipoondi. had

ommitted to assign new case numbers for 26 cases listed in

Annexure V, of this proceedings inspite of the fact that the cases

were received from J.M.I Ponneri on transfer as early as March -

April 2019 and the bundles were traced from your cup-board after

complaints from police and counsels. It is found that your are

lethargic and negligent in your duty and showed scant regard to

the directions in the running note file dated 8.5.2019.

Memorandum dated 21.8.2019 vide Dis.No. 1827/2019 was issued

to your and your explanation was found not satisfactory. The said

conduct of the individual amounts to gross negligence and

dereliction of duty.

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W.P.No.30961 of 2019

2. That you Thiru. P.Anantha Kumar Junior Assistant,

District Munsif Cum Juducial Magistrate Court, Gummidipoondi.

by order dated 10.9.2019, in the running Note file, was given a

final chance to index disposed case records (Civil and Criminal) as

on 31.8.2019 and to produce them to the officer on 30.9.2019. It

was also intimated in the order that if compliance report is not

filed on 30.9.2019, serious disciplinary proceedings shall follow.

But the individual has shown scant regard to the directions either

under three Memorandums issued to him on 21.5.2019, 17.7.2019

and 21.8.2019 or under the running note file dated 8.5.2019 and

finally under officer order dated 10.9.2019."

5. The delinquent was been placed under suspension by the

very same order of the District Munsif-cum-Judicial Magistrate. The

proceeding dated 01.10.2019 has been challenged by the writ

petitioner, primarily stating that the facts do not warrant initiation

of proceedings under 17(b) of Discipline and Appeal Rules, which are

initiated to award major penalties. The charge memo was also

challenged on the ground that the District Munsif-cum-Judicial

Magistrate is not the competent authority to initiate disciplinary

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W.P.No.30961 of 2019

proceedings in as much as he is not the appointing authority and

further that he does not have the authority to place the writ

petitioner under suspension.

6. The respondents have filed a counter, justifying the

necessity to initiate disciplinary proceedings under Rule 17(b) of

Discipline and Appeal Rules, for imposing a major penalty. The

counter also states that the District Munsif-cum-Judicial Magistrate

had the power to initiate disciplinary proceedings under Rule 17(b) of

Discipline and Appeal Rules, for imposing a major penalty and also

for the authority to place the writ petitioner under suspension.

7. The law regarding the power of a Writ Court to interfere at

the stage of charge memo while exercising its jurisdiction under

Article 226 of the Constitution of India is well settled. The Hon'ble

Supreme Court in the case of Union of India v. Kunisetty

Satyanarayana, (2006) 12 SCC 28, has observed as under:-

"13.It is well settled by a series of decisions of this

Court that ordinarily no writ lies against a charge-sheet or

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show-cause notice vide Executive Engineer, Bihar State

Housing Board v. Ramesh Kumar Singh[(1996) 1 SCC 327 : JT

(1995) 8 SC 331] ,Special Director v. Mohd. Ghulam

Ghouse[(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC

1467] ,Ulagappa v. Divisional Commr., Mysore[(2001) 10 SCC

639] ,State of U.P. v. Brahm Datt Sharma[(1987) 2 SCC 179 :

(1987) 3 ATC 319 : AIR 1987 SC 943] , etc.

14.The reason why ordinarily a writ petition should

not be entertained against a mere show-cause notice or

charge-sheet is that at that stage the writ petition may be

held to be premature. A mere charge-sheet or show-cause

notice does not give rise to any cause of action, because it

does not amount to an adverse order which affects the

rights of any party unless the same has been issued by a

person having no jurisdiction to do so. It is quite possible

that after considering the reply to the show-cause notice or

after holding an enquiry the authority concerned may drop

the proceedings and/or hold that the charges are not

established. It is well settled that a writ petition lies when

some right of any party is infringed. A mere show-cause

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W.P.No.30961 of 2019

notice or charge-sheet does not infringe the right of

anyone. It is only when a final order imposing some

punishment or otherwise adversely affecting a party is

passed, that the said party can be said to have any

grievance. "

In view of the said judgment, this Court at this juncture is not

inclined to go into the correctness or otherwise of the charge memo.

8. The issue which remains for consideration is as to whether

the District Munsif-cum-Judicial Magistrate had the authority to

initiate the disciplinary proceedings against the writ petitioner and

to place the petitioner under suspension.

9. We have heard learned counsel for the parties and perused

the records.

10. The writ petitioner is a member of the Tamil Nadu Judicial

Ministerial Service, the Rules whereof came into effect in 1955. Rule

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3 of the Tamil Nadu Judicial Ministerial Service Rules provides that

the Tamil Nadu Civil Services (Classification, Control and Appeal)

Rules, the rules regulating the pay of the services, the Government

Servants' Conduct Rules, the Fundamental Rules, the Tamil Nadu

Leave Rules, 1933, and the Pension Rules would be applicable to the

members of the Tamil Nadu Judicial Ministerial Service.

11. By G.O. (Ms) No.149 P&AR (Per.N) Dept., dated 23.06.1994,

the Discipline and Appeal Rules were made applicable to the

members of the Tamil Nadu Judicial Ministerial Services. The services

under Tamil Nadu Judicial Ministerial Service Rules, consist of various

classes and categories of officers. The writ petitioner was appointed

as Senior Bailiff, which falls in class V.

12. Rule 6 of the Tamil Nadu Judicial Ministerial Service Rules,

provides for appointment to several classes and categories of

members belonging to the Ministerial service. As per this provision,

Junior Assistants are appointed by promotion from Assistant

Superintendents of Copyists, Examiners, Senior Bailiffs, Readers and

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Copyists; or by direct recruitment or for special reasons, recruitment

by transfer from any other service.

13. Rule 6(ii) of the Tamil Nadu Judicial Ministerial Service

Rules, provides that all appointments, promotions, reversions,

reappointments, confirmations and transfers are made by the

Principal District Judge or the District Judge where there is no

Principal District Judge in the entire District.

14. Rule 10 of the Tamil Nadu Judicial Ministerial Service Rules,

specifies the appointing authorities for the various classes. This Rule

provides that the Principal District Judge, or where there is no

Principal District Judge, the District Judge concerned, is the

appointing authority for a Senior Bailiff or an Assistant.

15. Part III of the Discipline and Appeal Rules deals with

discipline/penalties. Rule 8 of the Discipline and Appeal Rules

enumerates the penalties which can be imposed on every member of

the civil service of the State and other persons holding civil posts

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under the State. The penalties which can be imposed under Rule 8

are:-

" (i) Censure;

(ii) Fine (in the case of persons for whom such penalty is

permissible under these rules) ;

(iii) Withholding of increments or promotion ;

(iv) Reduction to a lower rank in the seniority list or to a

lower post not being lower than that to which he was

directly recruited, whether in the same service or in

another service, State or Subordinate, or to a lower time-

scale, not being lower than that to which he was directly

recruited, or to a lower stage in a time-scale ;

(v) Recovery from pay of the whole or part of any

pecuniary loss caused to the State Government or the

Central Government or to any Government Company or

Organisation or Local Authority or to a Local Body, while

on deputation, by negligence or breach of orders;

(vi) Compulsory retirement;

(vii) Removal from the Civil Service of the State

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Government;

(viii) Dismissal from the Civil Service of the State

Government; and

(ix) Suspension, where a person has been suspended under

rule 17(e), to the extent considered necessary by the

authority imposing the penalty."

Rule 8 of the Discipline and Appeal Rules further provides that

item Nos. (i) to (iii), (v) & (ix) are minor penalties and item Nos.(iv),

(vi) to (viii) are major penalties.

16. Rule 9(c) of the Discipline and Appeal Rules provides that

the Governor or any other authority empowered by him through a

general or a special order may -

(i) institute disciplinary proceedings against any Government servant;

(ii) direct a disciplinary authority to institute disciplinary proceedings

against any Government servant on whom that disciplinary authority

is competent to impose under these rules any of the penalties

specified in rule 8.

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W.P.No.30961 of 2019

17. Rule 12 of the Discipline and Appeal Rules provides that 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 Services;

Provided that if the Governor of Tamil Nadu is himself, the

appointing authority for any service or class or category thereof, he

may himself impose any of the said penalties. Rule 12(i) further

states that in case of the members of the Services specified in

column(1) 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 entries in columns (2),(3)

and (4) thereof.

18. Rule 12(2) of the Discipline and Appeal Rules provides that

the appointing authority or any authority administratively higher to

the appointing authority may impose the penalties specified in items

(i),(iii) to (viii) and (ix) of rule 8 on members of the State Service.

However, Rule 2 provides that in the case of members of the State

Services who have been appointed by the Government or by any

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authority administratively higher than the appointing authority,

major penalties shall be imposed only by the Government or by an

authority higher than the appointing authority. The third proviso to

Rule 12(2) of the Discipline and Appeal Rules, which are relevant in

this case read as under:-

"Provided also that all authorities directly higher to

the members holding the posts included in the State

Services may frame charges against such members of the

State Services under rule 17(b) or issue show cause notice

under rule 17(a) even if they are not the competent

authority to impose the penalty and they may conduct the

inquiry themselves or request the competent authority to

appoint an officer to conduct the inquiry. They shall remit

the papers to the competent authority for passing final

orders, after the case is processed upto the level of

completion of inquiry or after receipt of explanation to

show cause notice, as the case may be."

19. A perusal of the said proviso would show that all authorities

directly higher to the members holding the posts included in the

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State Services may frame charges against all the members of the

State Services under rule 17(b) or issue show cause notice under rule

17(a) even if they are not the competent authority to impose the

penalty and they may conduct the inquiry themselves or request the

competent authority to appoint an officer to conduct the inquiry.

20. Rule 17(e)(1) of the Discipline and Appeal Rules, reads as

under:-

(e) (1) A member of a service may be placed under

suspension from service, where-

* (i) where-a disciplinary Proceedings against him is

contemplated or is pending; or

(ii) a case against him in respect of any criminal offence is

under investigation, inquiry or trial.

Rule 14(a)(1) as it originally stood read as under:-

“The authority which may impose suspension

pending enquiry into grave charges under Rule 17(e) or the
penalties of
i) Censure
ii) Fine
iii) withholding of increments, and

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iv) recovery from pay of the whole or part of any

pecuniary loss caused to the State Government or
theCentral Government or to a local body by negligence or
by breach of orders
On a member of a Subordinate Service shall be his
immediate superior Gazetted officer or, where the
appointing authority for such member is a non-gazetted
officer, such officer are any higher authority:
Provided that such Gazetted officer shall, before
imposing the penalty of withholding of increments on a
member, report the matter to the appointing authority
and obtain its prior sanction.”

21. There was an amendment in the Discipline and Appeal

Rules in the year 1954. The notification by which Sub Clause 4 of

Clause-1 of Rule 14(a) was amended read as under:-

“(2) In clause(1) of rule 14(a), for sub-clause (iv), the following

sub-clause shall be substituted, namely:-

“(iv) (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
b) Recovery from pay to the extent necessary of the
monetary value equivalent to the amount of increments

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ordered to be withheld, where such an order cannot be

given effect to”;”

22. The rule therefore should read as under:-

“The authority which may impose suspension

pending enquiry into grave charges under Rule 17(e) or
the penalties of
i) Censure
ii) Fine
iii) withholding of increments
“(iv) (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
b) Recovery from pay to the extent necessary of
the monetary value equivalent to the amount of
increments ordered to be withheld, where such an order
cannot be given effect to”;”
On a member of a Subordinate Service shall be his
immediate superior Gazetted officer or, where the
appointing authority for such member is a non-gazetted
officer, such officer are any higher authority:
Provided that such Gazetted officer shall, before
imposing the penalty of withholding of increments on a
member, report the matter to the appointing authority
and obtain its prior sanction.”

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W.P.No.30961 of 2019

23. Unfortunately in most of the books the rule has been

wrongly quoted as under:-

"14.(a)(1) The authority which may impose

suspension referred to in rule 17(e) or penalties of -
(i) censure,
(ii) fine,
(iii) withholding of increments, and
(iv) (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
(b) recovery from pay to the extent necessary of
the monetary value equivalent to the amount of
increments ordered to be withheld, where such an
order cannot be given effect to, on a member of a
Subordinate Service shall be his immediate superior
Officer of the State Services or, where the appointing
authority for such members is an Officer of the
Subordinate Services, such officer or any higher
authority ;

This has led to lot of confusion as to whether the officer

immediately superior to the delinquent officer can pass an order of

suspension or not, which is the question which arises for adjudication

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in this case. This Court requests the various book publishers to be

careful in incorporating amendments in the books, lest the Courts

might take erroneous decisions which will be detrimental to the

interests of people.

24. Rule 14(a) (supra), provides that the authority which may

impose suspension referred to in rule 17(e) or penalties of censure,

fine, withholding of increments is the immediate Superior Officer of

the State Services or, where the appointing authority for such

member is an officer of the Subordinate Services, such officer or any

higher authority.

25. On a perusal of above mentioned Rules, it is apparent that

the District Munsif-cum-Judicial Magistrate is a higher authority to

the assistant, however an authority lower than the appointing

authority, in this case namely the Principal District Judge. Under Rule

12 quoted above, the District Munsif-cum-Judicial Magistrate

therefore has the power to initiate disciplinary proceedings against

the writ petitioner. But the issue is as to whether the writ petitioner

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can be placed under suspension or not.

26. The State of Tamil Nadu has passed G.O.Ms.No.19, P&AR(N)

Department, dated 11.02.2008. The relevant portions of the G.O.

and the notification read as under:-

"3. The Government have examined the matter

carefully. Article 311 (1) of the Constitution of India

inter-alia provides: that no person who is a member of

Civil Service of a State or holds a civil post under a State

shall be dismissed or removed by an authority subordinate

to that by which he was appointed. As such, there is no

bar for the appointing authorities to impose minor and

major penalties and suspension. Further, the Supreme

Court of India in its Order dated 1.12.1994 in Civil Appeal

Nos. 8561-62 of 1994 have also observed that initiation of

inquiry by an authority subordinate to the appointing

authority is unobjectionable. Therefore it is considered to

delegate the powers to impose minor and major penalties

and also suspension under rule 17 (e) of the Tamil Nadu

Civil Services (Discipline and Appeal) Rule to the

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appointing authorities concerned in respect of those

members of the State Services for which the Government

are not the appointing authority. It is also considered that

if delegation of powers are given to the appointing

authorities to impose minor and major penalties and

suspension under rule 17(e) of the Tamil Nadu Civil

Services (Discipline and Appeal) Rules on members of

State Services and also all officers directly higher to the

delinquent officers to frame charges and conduct the

inquiry into them, it may lead to quick disposal of

disciplinary cases as they are only in better position to

assess the nature of irregularities committed by the

delinquent officers. The said delegation of powers may

also relieve the Heads of Departments and Government

from unnecessary burden of work at their level and this

will save time and the Heads of Departments may be

entrusted with more responsibilities.

4. The Government have, therefore, decided, -

(i) to delegate the powers to impose minor and major

penalties on all members of the State Services and the

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powers to suspend them under rule 17(e) of the Tamil

Nadu Civil Services (Discipline and Appeal) Rules, to the

appointing authorities ; and

(ii) to delegate the powers to frame charges under rule

17(b) or to issue show-

cause notice under rule l7(a) of the Tamil Nadu Civil

Services (Discipline and Appeal) Rules to all authorities

who are immediately above the members of the State

Services even though they are not competent to impose

penalties on them.

5. Accordingly, the Government pass the following

orders:-

All the appointing authorities for the posts included in

the State Services, (wherever the Government are not the

appointing authority) may impose minor and major

penalties on the members of State Services and they may

suspend such members; under rule 17(e) of the Tamil

Nadu Civil Services (Discipline and Appeal) Rules.

However, where such members of State Services were

originally appointed by the Government, they shall remit

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the papers to Government for passing final orders in the

cases of disciplinary proceedings instituted under rule

17(b) of the said Rules, after following all the procedures

upto the stage of completion of inquiry to satisfy the

requirement in Article 311 (1) of the Constitution of

India. The said appointing authorities are to exercise the

above powers subject to the provisions in rule 9 A of the

Tamil Nadu Civil Services (Discipline and Appeal) Rules."

(ii) All authorities directly higher to the members holding

the posts included in the State Services may frame

charges against such members of, State Services under

rule '17(b) or issue show cause notice under rule 17(a) of

the Tamil Nadu Civil Services (Discipline and Appeal)

Rules, subject to provisions in rule -9 A of the said Rules,

even if they are not the competent authority to impose

the penalty' and they may conduct the. inquiry themselves

or request the competent authority to appoint an inquiry

officer to conduct the inquiry. They shall remit the papers

to the competent authority for passing final,orders, after

the case is processed upto the level of completion of

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inquiry or after the-receipt of explanation to show cause

notice, as the case may be.

6. In the light of the order in paragraph 5 above, the

Government have also decided to amend rules 9(c)(1)(ii),

12, 13, 20(3),20,(4) and Appendix IV and to omit rule .

11of the Tamil Nadu Civil Services (Discipline and Appeal)

Rules.

7. The following Notification will be published in the

Tamil Nadu Government Gazette.

NOTIFICATION

In exercise of the powers conferred by the proviso to

Article 309 of the Constitution of India, the Governor of

Tamil Nadu hereby makes the following amendments to

the Tamil Nadu Civil Services (Discipline and Appeal) Rules

( in Volume I of the Tamil Nadu Services Manual, 1987).

2. The amendments hereby made shall come into force on

the 11th February, 2008.

AMENDMENTS

In the said Rules,-

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(1) in rule 9, in sub-rule (e), in clause (1); in sub-clause

(ii), for the expression "rule 11", the expression "rule 12"

shall be substituted;

(2) rule 11 shall be omitted;

(3) in rule 12,-

(i) in sub-rule (1),after the second proviso, the following

proviso shall be added, namely:-

"Provided also that the High Court of Judicature at

Madras may impose on members of the. Tamil Nadu State

Judicial Service any of the penalties specified in items (i),

(iii), (iv), (v) and (ix) in rule 8.";

(ii) for sub-rule (2), the following sub-rule shall be

substituted, namely:-

"(2) Notwithstanding anything contained in these rules,

the appointing authority or any authority administratively

higher to the appointing authority may impose the

penalties specified in items (i),(iii) to (viii) and (ix) of

rule 8 on members of the State Services:

Provided that where the members of the State

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Services have been appointed by the Government or by

any authority administratively higher than the appointing

authority, the penalties mentioned in item (iii) in so far

as it relates to withholding of promotion and items (iv),

(vi), (vii) and (viii) in rule 8 shall be imposed only by the

Government or by such higher authority:

Provided further that where the State Government

are the appointing authority for members holding the

posts included, in the State Services, the Heads of

Departments concerned may impose any of the penalties

specified in items (i) and item (iii) in so far as it relates

to withholding of increments and items (v) an (ix) in rule

8 on those members other than such members who are

immediately below such Heads of Departments:

Provided also that all authorities directly higher to

the members holding the posts included in the State

Services may frame charges against such members of the

State Services under rule 17(b) or issue show cause notice

under rule 17(a) even if they are not the competent

authority to impose the penalty and they may conduct the

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inquiry themselves or request the competent authority to

appoint an inquiry officer to conduct the inquiry. They

shall remit the papers to the competent authority for

passing final . orders, after the case is processed upto the

level of completion of inquiry or after receipt of

explanation to show cause notice, as the case may be:

Provided also that where the appointing authority.

or the authority administratively higher to the appointing

authority, have passed orders of suspension under rule

17(e) on the members of the State Services, they may

exercise the power to impose the penalty specified in

item (ix) in rule 8 on such members."

27. A perusal of para 3 of G.O.Ms.No.19, would show that the

Government wanted to give the power to place an employee under

suspension under Rule 17(e) of the Discipline and Appeal Rules to an

authority higher than the delinquent employee, even though he

might not be the appointing authority. The above mentioned G.O

gives the power to initiate disciplinary proceedings under Rule 17(b)

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to an authority higher than the delinquent employee by making

amendments in Rule 12 which deals with powers of the State

Government and Head of the Department to institute disciplinary

proceedings. It is to be noted that while Rule 12 deals with the

power of State Government and Heads of the Department to impose

penalties, Rule 14(a)(1) deals with the authorities competent to pass

orders of suspension and minor penalties except withholding of

promotion on member of Subordinate Service.

28. Learned counsel for the respondents has placed reliance on

the judgment of the learned Single Judge in the case of P.Jeyarani

Vs. The Principal Secretary to Government, Social Welfare &

Ors., WP(MD).No.4901 of 2013, dated 01.04.2013, wherein the

learned Single Judge held that the authority higher to the delinquent

employee is competent to suspend the delinquent employee.

29. The learned counsel for the respondents also placed

reliance on the judgment of Union of India Vs. J.A.Munaff, 1968

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(17) FLR 14, wherein the Hon'ble Supreme Court observed as under:-

"10. The situation here seems to be different. The

expression "Disciplinary Authority" has a two fold meaning.

For the purpose of imposing penalties of compulsory

retirement, removal or dismissal it can only be the

appointing authority whereas in relation to the issue of

charge-sheets etc. Under Rules 1709 to 1712 and 1716 it can

be any authority competent to impose any of the penalties

specified in Rule 1707. Rule 1707 as already noted

enumerates the various penalties which can be imposed on

a railway servant including those mentioned above. Rule

1705 read with Schedule II (for the purpose of this case)

shows that the Head of the Department is competent to

impose some of the penalties on Class IV artisans and Class

II staff. If therefore, the charge-sheet issued to the

Respondent in this case was in conformity with Rule 1705

read with Schedule II there was nothing irregular in the

enquiry and it was open to the appointing authority namely

the General Manager to impose on the Respondent the

penalty of dismissal from service. In the absence of all the

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available material we find ourselves unable to accept the

judgment of the High Court in this case. We therefore set

aside the judgment appealed from and remand the matter

to the High Court for consideration of the point canvassed

before us afresh if necessary by giving the parties

opportunity of adducing evidence by affidavit as to

whether the Respondent belonged to Class IV or Class III

staff or was an artisan and whether the charge sheet was

issued by the Head of the Department to which the

Respondent belongs."

30. Similarly, the learned counsel for the respondent also

placed reliance in the case of Transport Commissioner, Madras Vs.

A.Radha Krishna Moorthy, 1995 (1) SCC 332, wherein the Hon'ble

Supreme Court observed as under:-

"8. Insofar as initiation of enquiry by an officer

subordinate to the appointing authority is concerned, it is

well settled now that it is unobjectionable. The initiation

can be by an officer subordinate to the appointing

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authority. Only the dismissal/removal shall not be by an

authority subordinate to the appointing authority.

Accordingly it is held that this was not a permissible

ground for quashing the charges by the Tribunal."

31. The learned counsel for the respondent also placed

reliance on the judgments of the Hon'ble Supreme Court in State of

Orissa and others Vs. Shiva Parashad Das, (1985) 2 SCC 65,

Corporation of the City of Nagpur, Civil Lines, Nagpur and

Another Vs. Ramachandra & Ors., (1981) 2 SCC 714, P.V.Srinivasa

Sastry & ors., Vs. Comptroller and Auditor General & Ors., (1993)

1 SCC 419 and Inspector General of Police & Ors., Vs.

Thavasiappan, (1996) 2 SCC 145.

32. All these judgments deal with the power to initiate

disciplinary proceedings. In view of Rule 12 of the Discipline and

Appeal Rules as amended form time to time, District Munsif-cum-

Judicial Magistrate being a higher authority has the power to initiate

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disciplinary proceedings. A holistic reading of Rule14 read with para 3

of G.O.Ms.No.19, P&AR(N) Department, dated 11.02.2008, gives the

power to an authority higher than the delinquent employee to place

a delinquent employee under suspension under Rule 17(e) of the

Discipline and Appeal Rules pending departmental proceedings.

33. In view of the above, the writ petition is dismissed. The

respondents are directed to proceed with the departmental enquiry

and complete the the same within a period of 16 weeks from the

date of receipt of a copy of this order. No Costs.

(A.P.S., CJ.) (S.P., J.)

20/12/2019
Index : Yes
Internet : Yes
Speaking order
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W.P.No.30961 of 2019

To

1. The Registrar General,

High Court Madras, Chennai 104.

2. The District Judge,

Thiruvallur, Thiruvallur District.

3. The District Munsif-cum-Judicial Magistrate,

O/o.the District Munsif-cum-Judicial Magistrate
Court,
Gummidipoondi, Thiruvallur District.

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W.P.No.30961 of 2019

The Hon'ble Chief Justice

and

SUBRAMONIUM PRASAD, J

pkn.

Order made in
W.P.No.30961 of 2019

20/12/2019

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