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K. Venkataraman v. The State Of Tamil Nadu, Rep. By The Secretary To Govt. Food Dept. Madras-9.
Factual and Procedural Background
The appellant was originally inducted into the Judicial Department and became a permanent Chief Clerk in the Metropolitan Magistrate's Court, George Town, Madras. He was later drafted into the Civil Supplies Department and, while serving as Assistant Commissioner of Civil Supplies, Nungambakkam Zone, was reverted to the Judicial Department by an order dated 19-9-1979. The appellant challenged the reversion by filing Writ Petition No. 4169 of 1979 before a learned single Judge. The learned single Judge dismissed the writ petition after hearing two contentions advanced by the appellant. The appellant then preferred the present writ appeal against that dismissal.
Relevant administrative material referred to in the opinion includes G.O.Ms. No. 249, Food Department, dated 4-11-1978 (the opinion also cites the same G.O.Ms. with the date 4-11-1979 in one passage). The G.O.Ms. is described in the opinion as showing that the appellant's services in the Civil Supplies Department were regularised with effect from 10-12-1975 F.N and that proposals were to be sent to declare satisfactory completion of probation of officers, including the appellant.
Legal Issues Presented
- Whether the appellant's services in the Civil Supplies Department had been regularised such that he could not be reverted to the Judicial Department.
- Whether the impugned order of reversion was in reality punitive (a disguised termination) and, if so, whether it was invalid for lack of compliance with requisite formalities for punitive action.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that his services in the Civil Supplies Department had been regularised and therefore he could not be reverted to the Judicial Department.
- The appellant further contended that the order of reversion was a camouflage for punitive action — i.e., that he had effectively been removed from service by way of punishment without the formalities required for disciplinary action.
Respondents' Arguments
- The respondents acknowledged that the appellant's services were regularised in substance but relied on paragraph 4 of their counter-affidavit which stated that "no formal order declaring the completion of probation of the petitioner was issued by the competent authority under R. 27" and that, accordingly, the appellant was "deemed" to have completed probation but "has not been confirmed as Assistant Commissioner" and "is therefore liable for reversion at any time." (This passage is quoted in the opinion.)
- The respondents also explained in paragraph 3 of their counter-affidavit that complaints of corrupt conduct were received in 1977 concerning the appellant's activities as Assistant Commissioner (allegations of illegal gratification, ante-dating renewal endorsements, extracting money, and allowing unauthorised hulling without levy). The matter was referred for investigation to the Director of Vigilance and Anti-Corruption, who reported that allegations were not substantiated and that further action might be dropped; the Vigilance Commission endorsed that view. The Government decided not to take disciplinary action but nevertheless decided to revert the appellant to his parent department, which led to the present challenge.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| K. Ramachandra Perumal v. The Commissioner of Agricultural Income-tax and another W.P. No. 3606 of 1977, order dated 23-10-1979 |
Presented as a bench pronouncement taking a view similar to the court's conclusion that regularisation cannot be denied merely because a formal declaration of completion of probation was not issued. | The court referenced this decision as supporting the appellant's first contention and as one of two decisions showing a similar approach to the effect of the rules on deemed completion of probation. |
| The Commissioner of Civil Supplies, Madras and another v. P. Annamalai and others W.A. Nos. 741, etc. of 1980, Judgment dated 27-4-1982 |
Also cited as a bench pronouncement taking a similar view on the legal effect of completion of probation and regularisation despite absence of a formal order. | The court treated this authority as further supportive of the principle that the omission to issue a formal order declaring completion of probation does not defeat the legal implications of having completed the probationary period and being regularised. |
Court's Reasoning and Analysis
The court examined the two contentions separately and applied the relevant service rule R.27(b) of the Tamil Nadu State and Subordinate Services Rules (referred to in the opinion as "the Rules"). The opinion quotes R.27(b) and then explains its operative effect as understood by the court:
"If the appointing authority decides that a probationer is suitable for such membership, it shall, as soon as possible, issue an order declaring the probationer to have satisfactorily completed his probation. If no such order is issued within six months from the date on which he is eligible for such declaration, the probationer shall be deemed to have satisfactorily completed his probation on the date of expiry of the prescribed or extended period of probation. A formal order declaring the completion of probation shall, however, be issued by the competent authority."
Applying R.27(b), the court reasoned that:
- While a formal order declaring completion of probation is to be issued by the appointing authority, the rule itself provides that if no such order is issued within six months of eligibility the probationer is "deemed" to have satisfactorily completed probation.
- The omission by the appointing authority to issue the formal order does not remove the legal consequences produced by the rule's operation (i.e., that the probationer is to be treated as having completed probation and, in the context of the G.O., as regularised).
- The respondents' reliance on the lack of a formal order under R.27 to deny regularisation was therefore unsustainable; the court stated it was not permissible to permit the respondents to "take advantage of their own wrong" by using omission to frustrate the appellant's legitimate claim.
- The G.O.Ms. No. 249 (Food Department), dated 4-11-1978 (and cited elsewhere in the opinion as 4-11-1979 in one passage), was read as confirming that the appellant's services in the Civil Supplies Department were regularised with effect from 10-12-1975 F.N and that proposals to declare satisfactory completion of probation were to be sent for officers including the appellant.
- Accordingly, the court disagreed with the learned single Judge's conclusion on the first contention and sustained the appellant's first contention that he had been regularised and could not be reverted to the Judicial Department.
On the second contention, the court considered the respondents' own averments (paragraph 3 of the counter-affidavit) describing the complaints of corruption, the investigation by the Director of Vigilance and Anti-Corruption which reported allegations were not substantiated, and the Vigilance Commission's endorsement that the matter may be dropped. Despite the absence of substantiation, the Government decided not to take action but to revert the appellant to his parent department.
The court concluded that, on close examination ("lifting the veil"), the impugned order of reversion was founded on alleged misconduct — in other words, it was effectively punitive in character even though purportedly framed as an innocuous reversion. Because formalities required for imposing punitive/disciplinary action had not been complied with, that aspect of the reversion vitiated the order. The court accepted the appellant's complaint that the reversion amounted to termination by way of punishment without due process.
Holding and Implications
Holding:
WRIT APPEAL ALLOWED; the order of the learned single Judge is set aside and the Writ Petition is allowed.
Direct consequences and implications as stated in the opinion:
- The court sustained both contentions raised by the appellant: (1) that he had been regularised in the Civil Supplies Department and thus could not be legitimately reverted to the Judicial Department; and (2) that the reversion was in substance punitive and invalid for want of requisite disciplinary formalities.
- The result is that the appellant's continuation in the services of the Civil Supplies Department during the pendency of the proceedings is upheld. The opinion records that the appellant had obtained a stay of the impugned order during the proceedings and continued in service, and that he attained his normal age of superannuation on 31-10-1988. The court held that this continuation until 31-10-1988 stands validated and that the appellant is entitled to all service benefits on that basis.
- The court made no order as to costs.
Broader precedent: The court cited two bench pronouncements as supporting authorities for its view. The opinion does not claim to lay down a novel principle beyond applying R.27(b) and the cited authorities; the decision directly affects the parties by restoring the appellant's service status and benefits. The opinion does not elaborate broader policy implications beyond these direct effects.
JUDGMENT
Nainar Sundaram, J.
1. The appellant originally got inducted into the services of the Judicial Department and became a permanent Chief Clerk, Metropolitan Magistrate's Court, George Town, Madras, when he was drafted into the Civil Supplies Department; and on 19-9-1979 while he was working as Assistant Commissioner of Civil Supplies, Nungambakkam Zone, he was reverted to the Judicial Department. The appellant put that order in issue in W.P No. 4169 of 1979. Two contentions were advanced by the appellant before the learned single Judge, who heard and disposed of the writ petition. The learned single Judge did not accept either of the contentions and dismissed the writ petition and this has obliged the appellant to prefer the present writ Appeal.
2. The very same two contentions are being pressed forth before us. The first contention is that the services of the appellant were regularised in the Civil Supplies Department and hence he cannot be reverted to the Judicial Department. That the services of the appellant in the Civil Supplies Department were regularised is not being disputed by the respondents. Their answer is what is expressed in paragraph 4 of the counter-affidavit filed by them in the writ petition, which runs as follows:
“Though the services of the petitioner were regularised no formal order declaring the completion of probation of the petitioner was issued by the competent authority under R. 27 of the Tamil Nadu State and Subordinate Services Part II General Rules. However, he is deemed to have satisfactorily completed his probation on the date of expiry of the prescribed period of probation in the post of Assistant Commissioner of Civil Supplies He has not been confirmed as Assistant Commissioner. The individual is therefore liable for reversion at any time”.
This stand of the respondents has found favour with the learned single Judge and on the basis that no formal order declaring the completion of probation of the appellant was issued by the competent authority, as contemplated under R. 27 of the Tamil Nadu State and Subordinate Services Rules (viz., The Preliminary and the General Rules), hereinafter referred to as the Rules and hence the appellant was only a temporary band in the Civil Supplies Department and could be reverted back to the Judicial Department, the learned single Judge discountenanced this contention, put forth on behalf of the appellant. This thinking of the learned single Judge is the subject matter of attack before us. The relevant part of R. 27 (b), which alone has got to be looked into, reads as follows:
“If the appointing authority decides that a probationer is suitable for such membership, it shall, as soon as possible, issue an order declaring the probationer to have satisfactorily completed his probation If no such order is issued within six months from the date on which he is eligible for such declaration, the probationer shall be deemed to have satisfactorily completed his probation on the date of expiry of the prescribed or extended period of probation. A formal order declaring the completion of probation shall, however, be issued by the competent authority.”
G.O.Ms No. 249, Food Department, dated 4-11-1978, issued by the first-respondent, clearly bears out that the appellant's services in the Civil Supplies Department were regularised with effect from 10-12-1975 F.N and there was a direction to the Second-respondent to send the necessary proposals declaring the satisfactory completion of probation of the officers, including the appellant, whose services have been regularised. That the appellant completed the prescribed period of probation in the Civil Supplies Department is also not in dispute. The respondents bank upon and take cover under the lack of a formal order declaring the completion of probation to deny him the status of a permanent servant in the Civil Supplies Department. It is true that expiration of the probation period would not necessarily lead to regularisation or confirmation. But, if the service rule, by the force of its working, brings about that result, that must prevail. Here, we have noted the service Rule, namely, R. 7(b) of the Rules and it enjoins upon the appointing authority to issue an order declaring the probationer to have satisfactorily completed his probation and if no such order is issued within six months from the date on which the probationer becomes eligible for such declaration the probationer shall be deemed to have completed his probation on the date of expiry of the concerned period. Though a formal order declaring the completion of probationer shall be issued by the competent authority, the omission to issue the formal order will not take away the force of the implications of the rule, namely that while an order declaring the probationer to have satisfactorily completed his probation will have to be issued by the appointing authority, the failure on his part to do so will not alter the position and the probationer shall be deemed to have satisfactorily completed his probation, despite the fact that no such order has been issued. Hence, it is not possible to hang on to the theory that the lack of declaration of completion of probation on the part of the Second-respondent will negative the appellant the benefits of the legal implications of the completion of the probation period and his services in the Civil Supplies Department getting regularised. It must be noted here that the Second-respondent cannot take advantage of his omission to issue the declaration of completion of probation of the appellant inspite of G.O.Ms No. 249, Food Department, dated 4-11-1979; issued by the first respondent and that would be permitting the respondents to take advantage of their own wrong to stultify the legitimate claim of the appellant. Once it is found that the services of the Appellant in the Civil Supplies Department were regularised, it is not possible to resort to the process of reversion of the appellant to the Judicial Department. There had been a complete severence between the two services and the appellant had gone into Civil Supplies Department as a permanent hand and there is no question of reversion of the appellant to the Judicial Department. There are two pronouncements of Bench of this Court, which have taken views similar to the above and they are:
(1) K Ramachandra Perumal v. The Commissioner of Agricultural Income-tax and another . W.P No. 3606 of 1977, order dt. 23-10-1979., and (2) The Commissioner of Civil Supplies, Madras and another v. P. Annamalai and others . W.A Nos. 741, etc. of 1980, Judgment dated 27-4-1982..
Hence, we are not able to fall in line with the thinking of the learned single Judge over the first contention and we entirely agree with the learned counsel for the appellant on the first contention and sustain it.
3. The second contention put forth on behalf of the appellant is that the appellant has been actually sent out of the services of the Civil Supplies Department by way of punishment and the order of reversion is only a camouflage for the punitive action. As to what exactly weighed with the respondents in passing the impugned order of reversion has been exposed by them in paragraph 3 of their counter-affidavit as follows:
“In the year 1977, the Second-respondent reported to the first respondent that complaints have been received that the petitioner who was working as Assistant Commissioner of Civil Supplies, Belt area zone, was corrupt and that he had illegal gratification through agents for grant and renewal of wholesale licences to deal in paddy and rice. The Commissioner of Civil Supplies has also reported that enquiries revealed that only after the licencees approached him directly or through agents, he used to pick out cases, sign the renewal endorsements under ante date and hand over the licences to the parties after getting their acknowledgements in separate sheets of paper. It was also alleged that the Officer extracted money from rice mill owners at Red Hills and Moolakkadai by allowing them to hull paddy unauthorisedly and without collecting levy, He; therefore, recommended for investigation by the Director of Vigilance and Anti-Corruption. The originals of complaint petitions and certain renewal flies were also sent to Government for entrusting the case for investigation by the Director of Vigilance and Anti-Corruption. Accordingly, the case was entrusted to the Director of Vigilance and Anti-corruption for a thorough investigation in the month of September, 1977. The Director of Vigilance and Anti-corruption, after due investigation, sent a report to the vigilance Commission stating that the allegations are not substantiated and that further action in the matter may be dropped. The Vigilance Commission endorsed the views of the Director of vigilance and Anti-Corruption. Accepting the views of the Vigilance Commission, the Government decided not to take any action against the petitioner. However, they decided to revert him to his parent department and accordingly orders were issued. Aggrieved by this order, the petitioner has filed the above writ petition. The facts stated in the affidavit are admitted only to the extent that they are not contrary to the facts stated aboye.”
When we go through the above averments, there cannot be any doubt in our mind that though the impugned order of reversion appears innocuous, what weighed with the respondents in passing the same are the alleged culpable conducts on the part of the appellant during his functioning in the civil supplies Department. Thus, lifting the veil and seeing the real circumstances, we find that the basis and the foundation of the impugned order of reversion is the alleged misconduct on the part of the appellant. Hence, we find that the complaint of the learned counsel for the appellant that the services of the appellant have come to be terminated by way of punitive action is a legitimate one. Obviously the requisite formalities in law for taking a punitive action have not been gone through. This aspect also vitiates the impugned order. Sustaining these two contentions put forth on behalf of the appellant, we allow this writ Appeal; set aside the order of the learned single Judge and allow the Writ petition. We make no order as to costs. We find that during the pendency of the proceedings before the learned single Judge and before us, the appellant has obtained stay of the impugned order of reversion and has continued in service in the Civil Supplies Department and he attained his normal age of superannuation on 31-10-1988. The result of our allowing the writ petition is his continuation in the services of the Civil Supplies Department till 31-10-1988 stands upheld and he will be entitled to all the service benefits on that basis.
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