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2025 Supreme(Mad) 3383
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V.Karthikeyan, J.
B.Sivasankar - Petitioner
Versus
Government of Tamil Nadu Rep. By its Principal Secretary to Government Municipal Administration and Water Supply Department and ors. - Respondents
W.P.No. 9124 of 2024 And W.M.P.No. 10150 of 2024
Decided On : 24-02-2025
Advocate Appeared:
For the Petitioner: Mr. Balan Haridas
For the Respondent: Mr. C. Selva Raj, Additional Government Pleader, Mr. P. Gopinathan
A mercy petition must be evaluated on mitigating circumstances, not as a mere revision of a quasi-judicial order, especially when no mala fide is present.
Headnote:(A) G.O.
(D).No. 223, Municipal Administration and Water Supply (ME.4) Department - Writ Petition seeking Certiorarified Mandamus to set aside the order dated 26.04.2023 - The petitioner, an Assistant Executive Engineer, challenged the disciplinary action related to a building permit issued in 1996, asserting procedural lapses and lack of mala fide. (Paras 1-20)
(B) Disciplinary Proceedings - The Court emphasized that a mercy petition should consider mitigating circumstances and not be treated as a mere revision of a quasi-judicial order. The remarks of the second respondent were crucial in determining the petitioner’s culpability. (Paras 18-19)
Facts of the case:
The petitioner faced disciplinary action for issuing a building permit without verifying land title, leading to encroachment allegations. The building was never constructed, and the petitioner contended that the fault lay with prior planning permissions granted by CMDA officials. (Paras 3-12)
Findings of Court:
The Court found that the petitioner had undergone more punishment than warranted and directed the second respondent to reconsider the mercy petition in light of all circumstances. (Paras 16-20)
Issues: The main issues included the validity of the disciplinary action taken against the petitioner and whether the mercy petition should be granted based on the circumstances surrounding the case. (Paras 10, 19)
Ratio Decidendi: The Court ruled that the second respondent's remarks indicated no mala fide intention by the petitioner, warranting a reconsideration of the mercy petition. The Court underscored that disciplinary actions should be proportionate to the misconduct. (Paras 18-20)
Result: Writ Petition allowed; the impugned order set aside and remitted for fresh consideration.
ORDER :
C.V.Karthikeyan, J.
The Writ Petition has been filed in the nature of a Certiorarified Mandamus seeking records of the order of the first respondent in G.O.(D).No. 223, Municipal Administration and Water Supply (ME.4) Department, dated 26.04.2023 and to set aside the same.
2. The writ petitioner has also incidentally sought that this Court should interfere with the order of the second respondent dated 06.11.2018 and also the order dated 26.08.2013 issued by the first respondent and the further order of the second respondent dated 04.11.2011 as those orders have merged with the order impugned namely, the order dated 26.04.2023 in G.O.(D).No. 223, Municipal Administration and Water Supply (ME.4) Department, dated 26.04.2023 issued by the first respondent.
3. In the affidavit filed in support of the Writ Petition, it had been contended that the writ petitioner had joined the second respondent Corporation / Greater Chennai Corporation in the year 1993 for the post of Assistant Engineer. He was then promoted as Assistant Executive Engineer on 21.03.2005. He was issued with a charge memo on 02.02.2011 in which it was alleged that when he worked as Assistant Engineer in Town Planning Section, he had issued a building permit on 18.01.996 without verifying the title of the site and thereby enabled S.Srikanth of Hotel Shan Royal Private Limited at Koyambedu to encroach upon Sarkar Poromboke land to an extent of 1003 square meters in Block No. 31, T.S.No. 9/1 of Koyambedu Village and also the adjoining Coovum River to an extent of 1013 square meters in Block No.6, T.S.No.1 of Naduvankarai and that by this grant of building permission, he had violated Rule 20 of the Madras Corporation Servants Conduct Rules, 1968.
4. The petitioner had given an explanation on 21.02.2011 denying the charges. An Enquiry Officer had been appointed and the petitioner participated in the enquiry. A report was filed dated 03.05.2011 holding that the charges were proved . But however, no witnesses were examined, no documents were marked and the petitioner had only participated by answering a few questions, according to him, put by the Enquiry Officer.
5. It had also been stated that thereafter, the petitioner had given his further representation on 21.09.2011. The second respondent had forwarded the entire report to the Department of Vigilance and Anti Corruption and a punishment of stoppage of increment for three years without cumulative effect had been imposed by an order dated 14.11.2011. The promotion of the petitioner was kept in abeyance.
6. The petitioner filed an Appeal before the first respondent and that was rejected by G.O.(D).No. 445, dated 26.08.2013.
7. Thereafter, the petitioner made further enquiries and found that the building was never constructed at the place where the building permission had been granted. It was also found by the petitioner that earlier to the grant of building permission, the planning permission had been granted by the Chennai Metropolitan Development Authority on 22.06.1995 relating to the land in Survey No.136, T.S.No.9, Block No.29, Poonamallee High Road, Chennai. The construction was in Block No. 31, T.S.No.9 of Koyambedu Village and Block No.6, T.S.No. 1 of Naduvankarai Village.
8. It is thus seen that there was a difference with respect to the lay of the land where the planning permission was given by the CMDA and the building permission was issued by the petitioner herein.
9. The petitioner therefore filed a Review Petition before the first respondent on 29.10.2013. This was examined by the second respondent and was rejected by an order dated 16.11.2018.
10. The petitioner then submitted a mercy petition dated 20.11.2018 to the first respondent. The first respondent had called for a report from the second respondent. It was again clarified that the encroachment was only in T.S.No. 9/1 Block No. 31 of Koyambedu Village and T.S.No.1, Block No.6 of Naduvankarai Village. Specific remarks were forwarded by the second responde
