R SIVAKUMAR Vs. COLLECTOR KANCHIPURAM DISTRICT

JUDGEMENT

(1.) A challenge has been made to the show cause notice dated 27.10.2006 and to the order of punishment of censure passed by the first respondent in proceedings No.67671/2001/F2, dated 14.12.2007, seeking to quash the same.

(2.) THE case of the petitioner is as follows: (a) THE petitioner was working as Tahsildar in Kancheepuram Revenue Unit. His services were lent to Chennai Metropolitan Development Authority (for short, 'the CMDA') as Special Tahsildar, Land Acquisition, Maraimalai Nagar Scheme, Maramalai Nagar from 30.9.2005 to16.2.2007 on foreign service. His pay and allowances were paid from the funds of the CMDA, Chennai. THE Office of the Special Tahsildar, Land Acquisition, Maraimalai Nagar Scheme was started during the year 1973 with ten units. This was reduced gradually and now only functioning as only one unit and all the posts were disbanded in 2002 and from 2004 onwards, this unit is functioning with one Special Tahsildar, one Assistant, one Typist and one Surveyor. (b) When the petitioner was working under the Chief Executive Officer, CMDA, Chennai, he specially instructed the petitioner to attend the works relating to the LAOP files and other works allotted by the Deputy Planner, CMDA, Chennai. THE Deputy Planner instructed the petitioner to conduct a field survey to find out the details of vacant lands available under Maraimalai Nagar Housing Scheme and the details of the lands not handed over to CMDA. THE Deputy Planner also instructed to complete the work by 31.12.2005. (c) Based on the above instructions, the field survey was undertaken with one Surveyor and Assistant for 1850 acres of lands in the villages Tirukatchur, Chengundram, Kattankulathur, Potheri, Ninnakarai, Sithamanur and Kilkaranai. THE detailed report on the filed inspection was submitted to CMDA, Chennai. This work was attended till 31.12.2005. THE LAOP cases were also attended by the petitioner and in respect of these cases, the Government Pleader has to be consulted for each and every case personally and to give him the required details. (d) While the petitioner was working as Special Tahsildar, CMDA, Maraimalai Nagar Scheme, Maraimalai Nagar, the Collector of Chingalpet on 27.10.2006 issued a charge memo under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in Memo Rc.No.67671/2001/F2, for not furnishing certain details called for in the Office of the Special Tahsildar, Maraimalai Nagar Scheme, Maraimalai Nagar, prior to the petitioner taking over charge in the Office of the Special Tahsildar, Maraimalai Nagar Scheme, CMDA, Maraimalai Nagar. THE petitioner's predecessor did not furnish the details called for by the Collector, Kanchipuram due to the obvious reason that the winding of the office and the same functioning with skeleton staff only and therefore, the records pertaining to the old period were not readily traceable. (e) THE substance of the charges framed against the petitioner, is as follows: (1) (a) THE award amount of Rs.1,30,839.40 was deposited in Civil Court Deposit in the Sub-Court, Chengalpattu Custody on 28.9.1989 for 1.66 acres of lands acquired in S.No.289/1A, 289/3, 290/1A and 290/3 of Kattankolathur Village, Chengalpet Taluk as per Section 31(2) of the Land Acquisition Act, 1894. In order to obtain the amount from the Court custody and to hand over the amount to the requisitioning department and to send a report to Government, certain details were called for by the Collector of Kanchipuram in his letter No.60684/1986/F2, dated 18.2.2005 and the report called for was not furnished. (b) In respect of 0.11 acres of land acquired in Kattakkolathur Village in S.No.306/1A3, W.P.No.10775 of 1989 filed in the High Court was dismissed and therefore, the details of award amount granted and to initiate action under Section 47 of the Land Acquisition Act, 1894 and to send final check memo report called in letter No.111224/1986/F2, dated 31.1.2000 and the report was not yet received. (c) In respect of 0.95 acres of land acquired in Chitamanur Village in S.No.44/2, the check memo report was called for in letter No.64142/1990/F2, dated 2.8.2004 and the same was not furnished. (2) THE diary from February 2006 to September 2006 were not received from the Special Tahsildar, Maraimalai Nagar Scheme, CMDA, Maraimalai Nagar and thus the periodical register could not be maintained properly and thus the files could not be disposed. (3) In respect of the pending check memo files of Maraimalai Nagar Scheme, two surveyors were deputed to collect the details and they were informed that these work could not be attended by Surveyours since the petitioner had sent them by saying that he had to attend the office of the CMDA, High Court and Special Commissioner and Commissioner for Land Administration and the surveyors were returned without discharging their work. THE petitioner denied all the allegations levelled against him and submitted detailed explanation in his representation dated 16.10.2007. (f) THE petitioner submitted in the explanation that the alleged imputation 1(a) is not tenable, in view of the reason that the above letter was received by the petitioner's predecessor and due to winding up of the Maraimalai Nagar Scheme Office and now functioning with minimum skeletal staff of one unit only, the file pertaining to the year 1989 was not traceable immediately. This fact was informed by the petitioner's predecessor on 29.4.2005 and 19.5.2005. THE petitioner states that after he took charge, sincere steps were taken by him to trace out the file and the same could not be located and the fact was informed by the petitioner on 5.10.2005, 14.11.2005 and 10.1.2006. In respect of land acquisition matters, parallel records are available in the Collector's office itself and therefore, they could have taken suitable action based on the records available with them, instead of calling for these details from the office. Thus, the imputation 1(a) is not maintainable. THE alleged imputation 1(b) is not maintainable in view of the reason that action under Section 47 of the Land Acquisition Act, 1894 is to be initiated only by the Chengalpet Taluk Tahsildar. THErefore, the Chengalpet Taluk Tahsildar, Chengalpet was requested by the Special Tahsildar, Maraimalai Nagar Scheme in letter No.142/2002, dated 15.2.2005 and his report is awaited. Only on receipt of his report, final report could be sent to the Collector. THErefore, the imputation was levelled against the petitioner with motive and malice. THE alleged imputation No.1(c) is not maintainable and the final check memo report was submitted to the Collector on 26.9.1988. THErefore, without properly verifying the records, this imputation is levelled against the petitioner. (g) THE alleged imputation No.2 is not maintainable, in view of the reason that the petitioner's diaries from February 2006 to September 2006 were handed over by the petitioner in person in the office of the CMDA, Chennia-8 and Collector's Office as per the details furnished below: Month of Diary Date on which handed over in the Collector's Office February 2006 6.3.2006 March 2006 3.4.2006 April 2006 5.5.2006 May 2006 2.6.2006 June 2006 4.7.2006 July 2006 3.8.2006 August 2006 4.9.2006 September 2006 4.10.2006 THE charge specified that due to non-receipt of these diaries, the periodical register could not be maintained properly and the files could not be disposed. THE petitioner submits that inspite of the above fact, the charge is framed with bias and prejudice. (h) THE alleged imputation No.3 is not maintainable. THE surveyors deputed from the Collectorate were provided with all connected files on 16.10.2006 and to prepare the final check memo report and they being non-conversant with the preparation of final report, they could not prepare the final report and they returned to their office. This was taken as contra and thus the imputation was levelled against the petitioner. THE surveyors Mr.Murali and Mr.Subramani who were deputed, informed that the above work is clerical in nature and the surveyor could not do the same and did not discharge their duties left out scot-free. (i) According to the petitioner, the show cause notice/memo was issued to him on 27.10.2006 under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. It was served on the petitioner on 29.5.2007. In obedience to that, the petitioner submitted his explanation on 16.10.2007. THE petitioner has not contended in the explanation that the proceedings were initiated by the lending department for the alleged lapse committed under the borrowing department and still working there. THE petitioner was under the impression that his explanation will be accepted and he will be exonerated. However, the petitioner was punished. THE petitioner challenges the said order of punishment on the ground that since the proceedings themselves were initiated against Rule 16-B of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, the show cause notice-memo issued by the Collector, Kanchipuram, is not maintainable. In view of the biased and prejudiced attitude in framing the memo/show cause notice, the petitioner has not preferred any appeal to the Special Commissioner and Commissioner for Revenue Administration, Chennai. THE order of punishment of censure imposed by the fist respondent dated 14.12.2007 and the show cause notice dated 27.10.2006, are liable to be quashed.

(3.) ON the other hand, Ms.V.M.Velumani, learned Special Government Pleader appearing for the respondents submitted that what is challenged by the petitioner is only an order of minor punishment of censure for his misconduct, passed by the competent authority, namely the District Collector, who is the appointing authority as well as the disciplinary authority. Therefore, the impugned order is within the jurisdiction and instead of preferring appeal within time frame, after lapse of the period of appeal, the petitioner has moved this Court challenging the said order of minor punishment.