This is an appeal by special leave against the judgment and order passed by the Tamil Nadu Administrative Tribunal in O.A. No. 2587 of 1990.
Some complaints of corruption and other acts of misconduct by the respondent, during the period from 5.6.85 to 15.6.86, while serving as a Superintendent of Police, were received by the Directorate of Vigilance and AntiCorruption, Madras. The. Directorate investigated those complaints and reported its findings to the Tamil Nadu Government. The Government after examining the records submitted to it by the Directorate decided to refer those cases to the Tribunal for Disciplinary Proceedings (hereinafter referred to as ’the Disciplinary Tribunal’) constituted under Rule 3 of Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 (hereinafter referred to as ’the Disciplinary Proceedings Rules’) for enquiring into those cases. The Tribunal framed three Charges on 21.11.89 and communicated the same to the respondent. Thereupon, the respondent approached the Tamil Nadu Administrative Tribunal (hereinafter referred to as ’the Tribunal’) challenging the charge memo framed against him on the grounds of delay, vagueness and breach of the requirements of Rule 17 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as ’the Civil Service Rules’). The grounds of delay and vagueness were not considered as sufficient by the Tribunal for quashing the charges but it was of the view that the charges were required to be formulated by the Disciplinary Authority as required by Rule 17 of the Civil Service Rules after applying its mind to the record of the case and after recording the tentative decision to impose any of the penalties specified in Items (iv), (vi), (vii) and (viii) of the Rule 8 of the Civil Service Rules before referring the cases to the Tribunal for the purpose of holding an inquiry and as this was not done, the charges deserved to be quashed. The reasons given by the Tribunal for taking this view are as under :
"We would consider that the
substantive provisions of Rule 17
of the Tamil Nadu Civil Services
(Classification, Control and
Appeal) Rules in regard to the
functions and powers of the
disciplinary authority cannot. be
taken away from such authority by
the Tamil Nadu Civil Services
(Disciplinary Proceedings Tribunal)
Rules, 1955, which relate only to
the enquiry which is only a
component of the proceedings under
Rule 17 of the Tamil Nadu Civil
Services (Classification, Control
and Appeal) rules as we have
emphasized in our decision in O.A.
Nos. 712 and 713 of 1990 dated
26.2.1991 wherein we have held as
below:
Rule 17 (b)(1) therefore
requires that (1) there should be a
decision that the facts and
circumstances disclosed and the
evidence in support thereof
constituting the basis for the
charge would justify one of the
penalties specified therein if the
charges are established after the
enquiry into which the delinquent
officer would have the
opportunities as prescribed to put
forward his defense (2) with
reference to the facts and
circumstances disclosed and the
evidence, the charge or charges
should be formulated to be
communicated to the person charged
with a statement of allegations on
which these charges are based and
other circumstances which is
proposed to be taken into
consideration. (3) Consideration of
the written statement of defense
and a decision in regard to oral
enquiry in the light of the written
statement of defense, the request
of the delinquent officer for an
oral enquiry or otherwise,
Consideration of the evidence in
support of each charge to decide
whether oral evidence is necessary
if the delinquent has not asked for
such enquiry. (4) the contract of
the enquiry and the preparation of
the report of the enquiry. The
enquiry can be conducted by the
disciplinary authority or by any
authority designated by him. None
of these can be delegated except
the functions of the inquiry
Officer.. Whether action should be
initiated under Rule 17 (b) (1) or
under Rule 17 (a) of TNCS (CCA)
Rules is a decision which the
disciplinary authority alone can
take. That decision cannot be taken
by any lower authority empowered to
impose the penalties Specified in
Rule 17 (a); it such lower
authority initiates actions
proceeds with the elaborate enquiry
as required under Rule 17 (b) (4.).
and thereafter the disciplinary
authority is of the view that the
charges do not call for such
proceedings, the entire proceedings
would become superflous and the
delinquent would have been put to
delay and inconvenience which would
have been avoided if the
proceedings had been completest
under Joule 17 (a). The time and
effort c,, the part of the
department could also have teen
saved. Therefore, at this stage of
formulation of charges on
completion of the investigation
into the allegations, imputations,
default or misconduct a view has to
be taken in the light of the
results of the investigation
whether action under Rule 17 (b) is
called for and only thereafter
procedure as under that rule can be
invoked.
Further decisions involved
viz., whether an oral enquiry is
needed which has to be taken after
considering the written statement
of defence and the nature of the
charges amd evidence in a case in
which the delinquent does not ask
for oral enquiry, is again decision
which can be taken only by the
disciplinary authority because it
involves a finding whether the
charges as formulated have to be
enquired into in the light of the
written statement of defence, and
if the charges are supported by
documentary evidence whether an
oral enquiry is necessary, a
decision: may be possible at that
stare and without such
consideration, an oral enquiry
could not be proceeded with as a
normal routine without a specific
decision.
After referring to the
observation of the Supreme Court in
S.L.P. 2725/88 dated the 11.3.1988
(AIR 1988 SC 1000) we have held
that the "the principle enunciated
here is that the decision of the
disciplinary authority has to be
his personal decision after
consideration of all the relevant
facts and circumstances and
evidence on record and the
representation of the delinquent
officer. This principle should
extend to the entire Classes of
disciplinary action commencing from
the state of formulation of
charges. As already pointed out in
paragraph 4 of the decisions
involved are for Personal
consideration by able disciplinary
authority and cannot be delegated.
Any decision in the Course Of the
disciplinary action has to be that
of the disciplinary authority."
The tribunal, therefore, quashed the Charges dated 21.11.89 and directed the Government to re-examine the case in the light of the observations made by it in its order and if it thereafter considers it necessary to pursue the matter further then to formulate the charges, get the written statement of defense, to examine the case in the light of the written statement, Consider the documentary evidence and the nature of oral evidence available in support of the charges and to decide whether the cases are still to be referred to the Disciplinary Tribunal.
The appellant is challenging the view taken by the Tribunal as wholly wrong. It was submitted by the learned counsel for the appellant that the Tribunal has misconstrued the Civil Service Rules - and the Disciplinary Proceedings Rules and thus misdirected itself as regards the correct legal position.. He submitted that it is incorrect to say that Rule 17. of the Civil Service Rules is a substantive provision whereas Rule 8 (a) (i) of the Disciplinary Proceedings Rules is a procedural rule and that tale Disciplinary Proceedings Rules cannot affect the applicability of Rule 17 of the Civil Service Rules. He further submitted that once it is found by the Government that it is a case in respect of the matters involving Corruption and it decides to proceed departmentally against the Government servant then the said case has to be referred to the Disciplinary Tribunal and in such a case the procedure prescribed by the Disciplinary proceedings Rules is required to be followed and not the procedure prescribed by the Civil Service Rules.
We find considerable substance in the contentions raised on behalf of the appellant. The Madras Civil Services (Classification, Control and Appeal) Rules now known as Tamil Nadu Civil Services (Classification, Control and Appeal) rules have been framed by the Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. They came into force on and from the 1st January, 1955. So also the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 now known as Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 have been framed by the Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. They also came into force on the 1st January, 1955. Rule 2 of the Civil Service Rules provides that they shall apply to every member of the Civil Service of the State and to every person holding a civil post under the State except to the extent otherwise expressly provided :- (i) by or under any lair for the time being in force or in any rule, (ii) in respect of any such member by contract or agreement subsisting between such member or person and the Government. Part III of the Civil Service Rules makes provision for Discipline-Penalties. The Rules contained in that Part have specified the penalties which can be imposed, the authorities which can impose those penalties and Rule 17 provides the procedure which has to be followed before any of the penalties can be imposed. If it is proposed to impose a minor penalty then the procedure prescribed in Rule 17 (a) has to be followed, but where it is proposed to impose a major penalty, i.e., any of the penalties specified in Items (iv), (vi), (vii) and (viii) of Rule 8, then the procedure contained in Rule ’7 (b) has to be followed. Like the Civil Service Rules, the Disciplinary Proceedings Rules apply to all the officer under the Rulemaking Control of the State Government. Rule 2 thereof defines corruption by stating that it shall have the same meaning as criminal misconduct by a public servant under Section 5(1) of the Prevention of Corruption Act. Rule 3 provides for constitution of ’Tribunals for Disciplinary Proceedings . Each such Tribunal has to consist of one person only who shall be a judicial officer of the rank of District and cessions Judge. The Disciplinary Tribunal has to enquire into such cases as may be referred to the Tribunal and clause (a) of Sub-rule (1) thereof reads as under :
"Cases relating to Government
servants ona monthly salary of
Rs.200/- and above in respect of
matters involving corruption the
Part of such government servants in
the discharge of their official
duties."
Rule 5 inter alia provides that in every case referred to in clause (a) of sub-rule (1) and sub- rule (2) of rule 4, on completion of investigation, the Directorate of Vigilance and Anti-Corruption or any other Branch of the police or other departmental authority concerned, shall forward to the Government all the records of the case. It further provides that the Government shall, after examining such records and after consulting the head of the department concerned, if necessary, decide whether the case shall be tried in a Court of Law or by the Tribunal. It is then provided that if the Government decide that the case shall be tried by the Tribunal, they shall send the records to the Tribunal. Rule 8 which is an important rule for the purpose of this appeal, provides the procedure to be followed in conducting the enquiries soon after receiving the records of such cases from the Government. The material part of that rule reads as under :
"8(a)(i) Notwithstanding anything
contained in rule 17 of the Madras
civil Services (Classification,
Control and Appeal) rules, the
following procedure shall be
adopted by the Tribunal in
conducting enquiries in cases of
corruption and also in cases of
corruption combined with other
charges as soon as the records
relating to allegation of
corruption or of corruption
combined with other charges against
a Government servant are received,
the tribunal shall frame
appropriate charges, communicate
them to the person charged together
with list of witnesses likely to be
examined in respect of each of the
charges and with information as to
the date and place of enquiry Clause (d) of the said rule provides that the provisions of the Madras Civil Services (Classification, control and Appeal) rules shall apply - (i) in regard to the procedure to be followed in cases other than those of corruption; and (ii) in regard to any other matter for which no specific provision has been made in the Disciplinary Proceedings Rules. Under Rule 9 the Tribunal has to send its finding and recommendations to the Government together with its opinion after the enquiry is completed. Rule 10 provides the procedure to be adopted in regard to the passing of final orders in cases enquired into by the Tribunal notwithstanding anything contained in the Madras Civil Services (Classification, Control and Appeal) Rules. Rule 11 requires that the advice of the Tribunal should ordinarily be accepted. In a case where the Government decides to disagree with the recommendations of the Tribunal, it has to refer back the case to the Tribunal and it can take the final decision only after taking into Consideration the remarks of the Tribunal.
A comparison of the Civil Service Rules and Disciplinary Proceedings Rules clearly reveals that the Civil Service Rules are general rules applicable in all type of cases whereas the Disciplinary Proceedings Rules are special rules applicable in cases of corruption by Government servants and in respect of all those disciplinary cases in which the Government proposes to revise the original orders passed on the charges of corruption. As both the rules have been framed in exercise of powers conferred on the Government by Article 309 of the Constitution of India they have equal force of law. Therefore, the Tribunal was not right in holding that Rule 8 of the Disciplinary Proceedings Rules being a procedural Rule must give way to Rule 17(b) of the Civil Service Rules which is a substantive provision in regard to the functions and powers of the disciplinary authority. The tribunal failed to appreciate that Rule 17(b) of the Civil Service Rules is also a procedural provision and not a substantive provision as regards the powers of the disciplinary authority. Rule 17 does not deal with the powers of the disciplinary authority to punish a delinquent Government servant, but only provides the procedure to be followed in a case where it is proposed to impose a penalty on such Government servant. The Tribunal has clearly misconstrued the nature and scope of Rule 7 of the Civil Service Rules.
That becomes all the more apparent from the fact that the Tribunal has failed to consider the effect of Rule 2 of the Civil Service Rules. the said rule provides that the Civil Service Rules shall not apply to the extent it is otherwise expressly provided by or under any law for the time being in force or in any rule. Therefore, if we find any rule in any other rules which excludes operation of any rule of the Civil Service Pules then the said rule will prevail over the Corresponding rule in the Civil Service Rules. Rule 8 of the Disciplinary Proceedings Rules, in clear terms, excludes the operation of Rule 17 while conducting inquiries in cases of corruption and also in cases of corruption combined with other charges. The words Notwithstanding anything contained in Rule 17 are categorical and very clearly disclose the intention of the Rule-making authority that while conducting inquiries in cases of corruption and also in cases of corruption combined with other charges the procedure prescribed in Rule 8 has to be followed and not the procedure prescribed in Rule 17 of the Civil Service Rules. As stated earlier, the Disciplinary Proceedings Rules are special rules in the matter of holding disciplinary proceedings against Government servants in cases of corruption. It was desired by the Government that such cases should be enquired into by a special Tribunal consisting of a judicial officer of the rank of district and Sessions Judge. The findings and recommendations of the Tribunal ordinarily have to be accepted by the Government and if it wants to take a different decision it has to comply with the requirements of Rule 11. Even in regard to she passing of final Orders in cases enquired into by the Tribunal the species procedure contained in Rule 10 of the Disciplinary Rules has to be followed, notwithstanding anything contained in the Civil Service Rules. Clause (d) of Rule 8 of the Disciplinary Proceedings Rules also makes the position clear when it provides that the provisions of the Civil Service Rules shall apply in regard to the procedure to be followed in cases other than those of corruption and in regard to any other matter for which no specific provision has been made in the Disciplinary Proceedings Rules.
As we are of the view that this being a case of corruption Rule 17 of the Civil Service Rules did not apply, it is not necessary to deal with the requirements of Rule 17 and the question whether the view of the Tribunal in that behalf is correct. We may, however, draw attention to the decision of this Court in Inspector General of Police vs. Thavasiappan (1996 (2) SCC 145) wherein a similar Rule in Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955 was considered. In that case it has been held that Rule 3(b) of the said Rules is a procedural Provision and does not provide that the disciplinary authority itself should frame a charge and if a charge metro is prepared by any other authority then it has to be regarded as invalid. As regards the decision of this Court in Managurg Directors Utter Pradesh Warehousing Corporation and Another Vs. Vinay Narayan Vaipayes (1980 (2) SCR 773), to which our attention was drawn, we fail to appreciate how the decision can be of any help to the respondents There is no such principle of natural justice that before holding a regular departmental enquiry the disciplinary authority itself should hold a preliminary enquiry by first drawing up a charge memo and then calling for the written statement of defence before taking a decision to hold a regular departmental enquiry.
The view taken by the Tribunal in this case being wholly wrong, we allow this appeal and set aside the judgment and order passed by the Tribunal in O.A. No. 2587 of 1990, with result that it will be open to the appellant to proceed further with the enquiry pursuant to the charge memo dated 21.11.1989. No order as to costs.