A. PERIYAKARUPPAN v. THE PRINCIPAL SECRETARY TO

W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 decided to impose the punishment of compulsory retirement for the proven charges. In G.O. (2D) No.364, Revenue Department, dated 17.08.2012, the

Government issued orders that the petitioner is eligible for 2/3^rd of pension and DCRG shall be paid. The 1/3^rd of the eligible pension and the retirement gratuity was reduced as penalty.

4. The contention of the petitioner is that the Government did not provide

any opportunity before imposing the punishment. Based on the above said G.O., the Joint Commissioner, Revenue Administration, Chennai sent pension proposals to the Accountant General. Thereafter, the petitioner received 2/3^rd of pension and reduced DCRG. Aggrieved over the same, the present Writ Petitions are filed.

5. The contention of the petitioner is that this hard punishment is imposed on the petitioner for carrying out the orders of the then Assistant Settlement Officer, Madurai, dated 24.07.1996, passed in S.R.11/(a)3/95. The Assistant Settlement Officer is a Statutory Authority and also Quasi-Judicial Officer. He directed the petitioner to grant patta to an extent of 2873-03 hectares in Plot No.

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 36, i.e., S.No.280 part of Megamalai Village under Section 11 A of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948. The petitioner

has carried out the orders of the Assistant Settlement Officer in Proceedings No.

4264/95/A3, dated 25.08.1996. The further contention of the petitioner is that the

Assistant Settlement Officer, the quasi judicial authority passed orders directing

the petitioner to grant patta, as per his proceedings, dated 24.07.1996, in turn

based on the orders, dated 31.03.1995, of the Director of Survey and Settlement,

Chennai, as per his proceedings No.R.D.No.8/1991, treating the land in question

as Ryoti.

6. The grievance of the petitioner is that the Director of Survey and

Settlement, Chennai, who is the Head of the Department, who treated land in question as Ryoti has been left scot free, then, the Assistant Settlement Officer, Madurai, who directed the petitioner to grant patta has also been left scot free by quashing the show cause notice issued by the Government in W.P.(MD)No.10682 of 2007. Accepting the order of this Court, the Government issued G.O. (2D) No. 299, Revenue Department, dated 14.05.2010, dropping the show cause notice issued against the Assistant Settlement Officer and it has become final. But the

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 petitioner, who carried out the orders of the superior officials alone was taken for task and unimaginably by cutting the 1/3^rd of pension and DCRG.

7. Subsequently based on the orders, dated 26.08.1996 of the Settlement

Officer, Thanjavur and as per the directions, dated 29.08.1996, of the District Collector, Madurai, the patta granted in respect of 2877.03.0 hectare in S.No.280 of Megamalai Village was cancelled and the necessary entries were made in the Village accounts. Therefore, there is no monetary loss. In such circumstances, the punishment imposed on the petitioner is extremely harsh and the petitioner prayed to quash the impugned order of punishment.

8. The respondents have filed a counter affidavit stating that the petitioner was posted as Tahsildar in Andipatti Taluk Office, Theni District and he worked from 25.12.1995 till 31.12.1996. During such period, he had illegally granted pattas to the land belonging to the Government which is worth crores of rupees. The land in question Survey No.280 is situated in Megamalai Village and has been classified as "Forest Poramboke Land" and patta cannot be granted to any individuals in respect of the said survey lands including the legal heirs of Kambal

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 @ Veeraiah Chettiar. The petitioner was a Tahsildar, while conducting the legal inspection by the Assistant Settlement Officer, dated 06.07.1996, the petitioner

being a Tahsildar who is the Custodian of Government lands did not raise any

objections either orally or in writing, by stating the said land were forest lands in

nature and patta cannot be granted in favour of any individual. But the petitioner

has issued orders based on the proceedings, dated 24.07.1996, in collusion with

Assistant Settlement Officer, namely Soundarapandian, with mala fide the

intension and the petitioner has directed the Deputy Inspector of Survey and

Maintenance Firka Surveyor to prepare the sub-division records, 'B' sketch to a

large extent of 2877 hectares of forest land in S.No.280 for handing over the said

lands within 8 days from the date of receipt of instructions, knowing very well

that the lands marked as forest and the orders of the Assistant Settlement Officer

were not accordance to law and the said work cannot be done or completed within

eight days period. Thereby, the petitioner approved the land without any factual

inspection and carried out changes in the "Village and Thaluk Accounts" and

failed to take steps to protect the lands which are all forest lands. The petitioner

being a responsible Government official, duty bound to protect the lands but

failed to do so. Thereafter, without verifying any records, he passed an order

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 granting patta to the forest land in favour of private individuals who were legal heirs of Kambal @ Veeraiah Chettiyar on 25.08.1996.

9. After noticing all such irregularities and illegalities the petitioner was

issued with a charge memo, dated 25.01.2002. The petitioner submitted an explanation on 14.08.2002 and the Enquiry Officer submitted his report on 26.05.2005. The petitioner was called for to submit further explanation by show cause notice, dated 26.05.2005 and the petitioner submitted an explanation to the enquiry report on 19.08.2005. The petitioner was suspended on 28.02.2006, i.e., on the date of superannuation. Departmental proceedings were also initiated and he was not allowed to retire as per Fundamental Rules 56 (1) (c), vide G.O. (2D) No. 92, Revenue Department, dated 28.02.2006. Further, the Government has disagreed that the view expressed by the Enquiry Officer and the Government sought concurrence from TNPSC on 14.02.2008.

10. In the meanwhile, the petitioner filed W.P.(MD)No.11954 of 2008 and this Court, vide order, dated 28.11.2008, directed the respondents to pass final orders in the disciplinary proceedings. Thereafter, the final orders were passed in

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 G.O.(2D)No.159, Revenue [Ser-2(1)] Department, dated 06.04.2009. Through G.O.(2D)No.364, Revenue Ser-2(1)] Department, dated 17.08.2012, invoking

Rule 39(2) of the Tamil Nadu Pension Rules, since the petitioner has attained

superannuation, thereby, it was provisionally decided to reduce 1/3^rd of the

petitioner's pension and death cum retirement gratuity. The said order is

questioned in W.P.(MD)No.18636 of 2013.

11. The co-delinquent namely Muthusamy was not allowed to retire and the

same compulsory retirement was imposed on the said Muthusamy also, vide order, dated 28.05.2009 and the same was challenged in W.P.No.12976 of 2009 and the said Writ Petition was allowed by this Court, vide order, dated 16.07.2009 and the said Writ Petition was allowed solely on the ground that no opportunity was given to the said Muthusamy and the matter was remitted back to the disciplinary authority for fresh disposal. The Government preferred Writ Appeal in W.A.No.775 of 2010 and an order was passed confirming the order passed by the learned Single Judge, vide order, dated 23.03.2011. The Department could not conduct fresh enquiry in time. However, the said Muthusamy was placed under compulsory retirement on 22.10.2013, vide G.O.(2D)No.632, Revenue

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 [Ser-2(1)] Department, dated 22.10.2013. Hence, the said Muthusamy challenged the same in W.P.(MD)No.35115 of 2013, which was allowed, since the

department did not conduct any enquiry. Hence, the punishment of compulsory

retirement has been set aside and there was a direction to the respondents to pay

50% of the salary for the period of suspension from 28.05.2009 till the date of

retirement, i.e., up to 31.08.2014. The said order was challenged by the

respondents in W.A.No.1690 of 2017 and this Court, vide order, dated

22.03.2017, confirmed the order of the learned Single Judge. Thereafter, G.O.

(2D)No.151, Revenue and Disaster Management Department Service Wing, Ser.

2(1) Section, dated 18.06.2019, was passed. The petitioner has relied on the said

order passed in the case Muniasamy, Firka surveyor in W.P.No.35115 of 2013,

claiming similar relief. But in this present case, the petitioner was given sufficient opportunity. Hence, he cannot compare with the said Muthusamy. Hence, the

respondent preferred Writ Appeal in W.A.(MD)No.1455 of 2019, against the

order of the learned Single Judge in W.P.(MD)No.18636 of 2013, which was

allowed by an order, dated 05.12.2018 on the ground that the learned Single

Judge only adverting the merits of the order passed in the punishment order of

compulsory retirement inflicting the writ petitioner. Further, there was a direction

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 to release the retirement pension with interest and the Division Bench allowed the Writ Appeal by an order, dated 21.12.2020 and also remanded back the same to

the learned Single Judge to decide the case on merits and pass appropriate orders.

Consequent to the above judgment in W.P.(MD)No.18236 of 2013, is clubbed

with the Writ Petition is W.P.(MD)No.3070 of 2020. The respondents further

submitted that the person who was working as Deputy Inspector of Survey was

also under departmental proceedings and after due process, he was also a given

compulsory retirement from service in G.O.(2D)No.322, Revenue [Ser- 2(1)

Department, dated 19.06.2009 and the same was also challenged in W.P.(MD)No.

11363 of 2010 and the same was dismissed on 20.11.2019.

12.The petitioner has taken a stand that his co-delinquent namely one

Soundara Pandian, who was working then as Assistant Settlement Officer was

also issued charge memo under Rule 9 (2) (b) of the Tamil Nadu Pension Rules

and the said proceedings was quashed in W.P.(MD)No.10682 of 2007 and the said

order was implemented by G.O.(2D)No.299, Revenue Department, dated

14.05.2010. The said proceedings cannot be equated to the present writ petition

while considering the period of occurrence of delinquency, since the petitioner is

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 not similarly placed person as Muthusamy. Article 226 cannot be invoked as judicial review against the findings of the Enquiry Officer as well as punishment, since they are very rare circumstances. In case the findings of Enquiry Officer as well as the disciplinary proceedings are perverse without supporting reasons,

then, the Court can interfere and not otherwise. The petitioner has faced serious

charges and carried out such illegal acts. The Government has suffered financial

loss as the pattas were issued for available Government lands which are more

fully, described as forest lands without conducting any valid and reasonable

inspections and involved in forging documents and records, D sketches, etc.

Taluk Tahsildar being the custodian of Government lands, even though his

predecessor submitted a report, dated 02.12.1995, to the Assistant Settlement

Officer for issue of patta, he should not have acted to implement the orders of the Assistant Settlement Officer as it is not according to law and instead he issued

instructions to Deputy Inspector of Survey and Maintenance Firka surveyor to

prepare sub-division records and 'B' sketches within 8 days and carried out the

changes in respective accounts. The petitioner who worked as Tahsildar and

being the custodian of Government land has failed to take effective steps to

protect the Government lands and blindly implemented the orders of the Assistant

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 Settlement Officer. Thus, he has helped private parties for getting ryotwari patta for presumed pecuniary benefits. His anti-Government attitude led to huge loss to

the Government. Therefore, the orders passed by the respondents are legally valid

and the respondents did not commit any illegality or irregularity and prayed to

dismiss the Writ Petition.

13.Heard Mr.S.Visvalingam, the Learned Counsel for the petitioner and

Mrs.D.Farjana Ghoushia, the Learned Special Government Pleader and perused

records and affidavits.

14.It is seen that while the petitioner was serving as Tahsildar in Andipatti

Taluk he had granted patta to the legal heirs of Kambal @ Veeraiah Chettiar. The

contention of the petitioner is that patta was issued based on the orders passed by

the Assistant Settlement Officer's order dated 24.07.1996 and who in turn has

passed the order based on the order of Director of Survey and Settlement,

Chennai, as per his proceedings No.R.D.No.8/1991, treating the land in question

as Ryoti. Since all the higher authorities have passed an order stating the land as

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 Ryoti and directed the petitioner to issue Patta, the petitioner being subordinate have carried out the orders of the higher officials. Moreover, the disciplinary

proceedings of some of the officials were dropped and some of the proceedings

were quashed by the High Court. The co-delinquents namely Muthusamy Firka

Surveyor, Soundara Pandian Assistant Settlement Officer disciplinary

proceedings were dropped or quashed by the High Court. Since the petitioner is

similarly placed person and co-delinquents proceedings were dropped or quashed,

therefore the petitioner is also entitled to be treated on par with other delinquents

and hence the punishment ought to be quashed. The Learned Counsel for the

petitioner relied on the judgment rendered in Man Singh Vs State of Haryana

and others, reported in (2008) 12 SCC 331. The Supreme Court has held that the

punishment are arbitrary and unjustified as compared to his subordinate who had

been completely laid of and he is the culprit of misconduct. The petitioner relied

on the judgment and the relevant portion of the judgment is extracted under:

"20.We may reiterate the settled position of law for the benefit of

the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing

liability upon him. Equal is to be treated equally even in the matter of

executive or administrative action. As a matter of fact, the doctrine of

equality is now turned as a synonym of fairness in the concept of justice

and stands as the most accepted methodology of a governmental action.

The administrative action is to be just on the test of 'fair play' and

reasonableness.

21.We have, therefore, examined the case of the appellant in the

light of the established doctrine of equality and fair play. The principle is

the same, namely, that there should be no discrimination between the

appellant and HC Vijay Pal as regards the criteria of punishment of

similar nature in departmental proceedings. The appellant and HC Vijay

Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit

who, besides departmental proceedings, was an accused in the excise case

filed against him by the Excise Staff of Andhra Pradesh for violating the

Excise Prohibition Orders operating in the State. The appellate authority

exonerated HC Vijay Pal mainly on the ground of his acquittal by the

criminal court in the Excise case and after exoneration, he has been

promoted to the higher post, whereas the appeal and the revision filed by

the appellant against the order of punishment have been rejected on

technical ground that he has not exercised proper and effective control

over HC Vijay Pal at the time of commission of the Excise offence by him

in the State of Andhra Pradesh. The order of the disciplinary authority

would reveal that for the last about three decades the appellant has served

the Police Department of Haryana in different capacity with unblemished

record of service.

22. In the backdrop of the above-mentioned facts and circumstances of the

case, we are of the view that the order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in Excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The High Court has failed to appreciate and consider the precise legal questions raised by the appellant before it and dismissed the Second

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 Appeal by unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments and decrees of the first appellate court and that of the trial court is not sustainable. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-`-vis HC Vijay Pal, the

driver of the vehicle." 15. However the respondents submitted that the officials who are involved in the said patta proceedings faced disciplinary proceedings and the Government had initiated action against all the delinquents. But some of the proceedings were quashed by the High Court, some of the proceedings were upheld by the High

Court. Wherever the proceedings were quashed or wherever the writ petitions were allowed, in order to obey the orders of the High Court the disciplinary proceedings were dropped. The petitioner cannot claim to treat on par with them since in each case there is some difference. In the case of the said Muthusamy the High Court directed to conduct re-enquiry within a stipulated time since the delinquent was not granted opportunity, since the re-enquiry was not conducted within the said stipulated time, the punishment of dismissal was modified as compulsory retirement, but the same was quashed. Likewise the Soundara

Pandian disciplinary proceedings were dropped based on the order of the Court.

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 The contention of the respondents is that the petitioner ought to have brought to the knowledge to the higher officials that the land is "forest land" and patta

cannot be issued to individuals. The plea of the petitioner that he had followed the

orders of the higher officials cannot be accepted since the petitioner is having a

duty to protect the forest land. Moreover the petitioner has issued patta within a

period of 8 days from the date of the order of the Assistant Settlement Officer and

also issued instructions to Deputy Inspector of Survey and Maintenance Firka

surveyor to prepare sub-division records and 'B' sketches within 8 days and

carried out the changes in respective accounts, hence this would be evident that

the petitioner has acted for personal gains and therefore prayed to dismiss the writ

petition.

16.On hearing the rival contentions this Court is of the considered opinion

since the co-delinquent's disciplinary proceedings were quashed, the petitioner is

entitled to the same benefit as held in various cases. The delinquents deserve to

be treated equally in the matter of punishment in departmental proceedings for the

acts of omissions and commissions.

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 17. However since the question in land in classified as "Forest Land", this Court has some reservation in following the said principles.

18.The mother nature ought to be preserved. Indiscriminate destruction or

change is leading to several complications in ecosystem, ultimately is

endangering the very existence of the animals, flora and fauna, forests, rivers,

lakes, water bodies, mountains, glaciers, air and of course human. Strangely the

destruction is carried on by few humans. Any such act ought to be checked at all

levels. A report states, in India protected areas (like National Parks and

Sanctuaries) notified under the Wild Life Protection Act 1972 occupy less than

5% of India's geographical area. Infact this 5% provide ecosystem services to the

human survival. Rest of 95% of India's geographical area is available for humans.

Inspite of the same it is unknown why the human is so desperate to intrude in the

said 5% area. The indiscriminate activities in the said 5% area are causing huge

damage, which is irreversible.

19.The natural environment is part of basic human rights of "right to life

itself". A report indicates 60 per cent of earth's ecosystems are experiencing

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 terminal loss. Whether it is Amazon forest, sea life, elephants and tigers, rivers and lakes, glaciers or aquifers is strongly impacting human life. The few

remaining original forests - our biodiversity treasury- are being destroyed to make

way for huge mines or dams or lucrative real estate projects. And we attempt to

pacify the destruction with the words like 'compensatory afforestation' and it is

like giving sanction to kill all wild tigers and replace them by farming the same

population in captivity, which is absolutely against "Nature".

20.Under the guise of sustainable development the human should not

destroy the nature. If sustainable development finishes off all our biodiversity and

resources, then it is not sustainable development it is sustainable destruction. The

phrases like 'sustainable development', 'the polluter pays', 'the precautionary

principle' shall not be allowed anymore.

21.As stated in a recent judgment dated 30.03.2017 rendered by

Uttaranchal High Court in Lalit Miglani vs State of Uttarakhand And Others in

Writ Petition (PIL) No.140 of 2015, the "Nature's Rights Commission" should be

formed to protect the Nature. The judgment has extensively dealt with the issue of

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 protecting nature and its resources. In the judgment it has also been stated that,

"polluting and damaging the rivers, forests, lakes, water bodies, air

and glaciers will be legally equivalent to harming, hurting and causing injury to person. Rivers, Forests, Lakes, Water Bodies, Air, Glaciers and Springs have a right to exist, persist, maintain, sustain and regenerate their own vital ecology system. The rivers are not just water bodies and these are scientifically and biologically living. The rivers, forests, lakes, water bodies, air, glaciers, human life are unified and are indivisible whole. Mother Earth is grasping for breath. We must recognize and bestow the Constitutional legal rights to the 'Mother Earth'. The rights of these legal entities shall be equivalent to the rights of human beings and the injury / harm caused to these bodies shall be treated as harm/injury caused to the human beings and shall proceed under the common law, penal laws, environmental laws and other statutory enactments governing the field." 22.In the said judgment the Hon'ble Court by invoking "parens patriae jurisdiction", has declared the Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls as legal entity/ legal person/juristic person/juridical person/ moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. The Court also accorded the rights akin to fundamental rights/ legal rights for their survival, safety, sustenance and resurgence. Then the Court has appointed eminent persons to voice them, maintain its status and also to

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 promote their health and wellbeing. 23.The past generations have handed over the 'Mother Earth' to us in its pristine glory and we are morally bound to hand over the same Mother Earth to the next generation. It is right time to declare / confer juristic status to the

"Mother Nature". Therefore This Court by invoking "parens patriae jurisdiction", (parent of the nation jurisdiction) is hereby declaring the "Mother Nature" as a

"Living Being" having legal entity / legal person / juristic person / juridical person / moral person / artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. They are also accorded the rights akin to fundamental rights / legal rights / constitutional rights for their survival, safety, sustenance and resurgence in order to maintain its status and also to promote their health and wellbeing. The State Government and the Central Government are directed to protect the "Mother Nature" and take appropriate steps to protect Mother Nature in all possible ways.

24. Since in the present case the petitioner has issued patta to the Megamalai forest land for 2877.03.0 hectares of land in S.No.280 the petitioner ought to be punished. As stated earlier the co-delinquent punishment were either

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 quashed or dropped based on this Court orders, since the patta were cancelled subsequently based on the orders, dated 26.08.1996 of the Settlement Officer,

Thanjavur and as per the directions, dated 29.08.1996, of the District Collector,

Madurai, the patta granted in respect of 2877.03.0 hectare of land in S.No.280

Megamalai Village was cancelled and the necessary entries were made in the

Village accounts, the punishment ought to be modified. Therefore, this Court is of

the considered opinion that the punishment of compulsory retirement ought to be

modified as stoppage of increment for six months without cumulative effect and

consequential monetary benefits shall be conferred on the petitioner. This

punishment is imposed for the act done against mother nature. The respondents

are directed to implement this punishment within a period of four weeks from the

date of receipt of the copy of the order.

25. With the above direction, the Writ Petitions are allowed. There shall be

no order as to costs. Consequently, connected miscellaneous petitions are closed. Index : Yes / No 19.04.2022

Internet : Yes

Tmg

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W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 S.SRIMATHY, J

Tmg

To

The Secretary to Government, Revenue Department, Secretariat, Chennai- 600 009.

W.P.(MD)Nos.18636 of 2013 and 3070 of 2020 Note:

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.

19.04.2022

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