IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HONBLE MR.JUSTICE K.CHANDRU W.P.No.41681 of 2006 (O.A.No.8539 of 2000) Suresh Kumar ...Petitioner Vs 1.The Superintendent of Police, Nilgiris District, Udhagai. 2.The Deputy Inspector General of Police, Coimbatore Range, Coimbatore. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorari, to call for the records of the respondents in connection with the impugned order in PR.No.43/99 dated 7-9-99 and C No.AP/39/D2/99 dated 27-11-99 and quash the same. For Petitioner : Mr.K.Venkatramani,S.C. For Mr.M.Muthappan For Respondents : Mr.R.Murali, G.A. O R D E R
The petitioner was employed as Grade II Police Constable (Armed Reserve) at Nilgiris District. He filed O.A.No.8539 of 2000 before the Tamil Nadu Administrative Tribunal, seeking to set aside the order dated 07.09.1999 in PR.No.43/99 as well as the order dated 27.11.1989.
2. The Tribunal admitted the Original Application on 04.02.2000 and granted interim stay. Subsequently, the interim stay came to be extended without specifying any outer time limit by a further order dated 21.12.2000.
3. On notice from the Tribunal, the first respondent had filed a reply affidavit dated Nil (April 2009).
4. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.41681 of 2006.
5. The case of the petitioner was that he joined the service as a direct recruit in the year 1994. After undergoing training for two years, he was transferred to District Armed Reserve, Udhagamandalam during May 1998. While he was serving in TSP IV Battalion, Kovai Pudur, on 28.09.1996, he was incharge of guard duty of the Police Recruit School. One Inspector of Police by name Raju working in the company had personal animosity against the petitioner. The petitioner, though he was alert in his duty, the Inspector of Police came to the spot and with the assistance of another Constable attempted to remove the firing weapon from the person of the petitioner and tried to prepare a report, which led to a wordy quarrel between the petitioner and the Inspector, following which a charge memo was issued to him. Subsequently, based on his report, a punishment of stay in the camp for 5 days was imposed on the petitioner and a second charge memo was also given to him. The petitioner was directed to appear for an enquiry before DIG of Police, Trichy. Due to his ill health, he could not travel from Udhagamandalam to Trichy. A further charge memo was issued. The charge memo dated 30.04.1997 was issued under Rule 3A of the TNPSS (D & A) Rules. The petitioner gave his explanation on 14.05.1997.
6. The Assistant Commandant No.2, T.S.P. IV Battalion, Kovail Pudur was appointed as Enquiry Officer. The enquiry had commenced on 23.05.1997 and concluded on 03.07.1997. In the enquiry, 5 witnesses were examined on the side of the department and 8 exhibits were marked. The petitioner cross examined all those witnesses. The Enquiry Officer on the basis of the enquiry found that the charges were not proved and submitted a Minute to that effect. It was during that period, he was transferred to District Armed Reserve, Nilgiris. The Disciplinary Authority, namely the first respondent disagreed with the views of the Enquiry Officer and issued a dissenting note stating that the charges have been proved and for the proved charge, he directed the applicant as to why the punishment specified in Clauses (d),(h),(i) and (j) of Rule 2 of the Rules should not be imposed on him for the misconduct committed by him on 13.08.1999.
7. By the order dated 07.09.1999, the second respondent in paragraphs 2 and 3 held as follows:-
“2.Hence, I have disagreed with the enquiry report of the findings of the enquiry officer and a disenting note was issued to the delinquent on 13.08.1999, which was acknowledged by the delinquent on 18.08.99 for which he was submitted his explanation dated 23.08.99. In his explanation he has stated that the evidences of Pws are not trust worthy, the enquiry officer correctly given his finding, that there was delay in the disciplinary proceedings, that the entries made by the OC-D company cannot be relied upon that he was issued with Medical passport, the evidence and records are fabricated and contrary to the oral evidence, that the charge was initiated to victimise him as he sent a petition against the Superintendent of Police, Mr.Rathinaraj, that he went Mettupalayam from Gudalur by Deluxe Car with the help of his brother and he has no money to go to Trichy by Car and hence he has requested to drop further action in the PR.
3.The contention of the delinquent dated 23.08.1999 in the explanation to the disenting note do not hold any water. The delay pointed out by the delinquent do not mitigate the delinquency committed by him. As the recorded evidence in Ex.P.1 and Ex.P.2 corraborate with the oral evidence of PW.1 established the charges in count No.1 and 2. The recorded evidence in Ex.P.3,4 and 5 and the deposition of PW.2 and 3 established the charges in count No.3 and 4. The recorded evidences in Ex.P.6,7 and 8 and the deposition of the PW1 established the charge in count No.5. His explanation do not inspire any confidence at all. I, therefore, do not give any credence to his explanation. In the circumstances I disagree with the findings of the enqiury officer and hold all the five count of the charges as proved. Though the delinquencies committed by the delinquent are grave in nature, I take lenient view to give a chance to the delinquent to correct him in future, I award him a punishment of Postponement of next increment for a period of two years without cumulative effect.”
8. As against the said penalty, the petitioner preferred an appeal to the DIG of Police, Coimabtore vide appeal dated 11.01.1999. The Appellate Authority dismissed the appeal as it was time barred. Thereafter, the petitioner moved the Tribunal with the Original Application and obtained an interim order. The ground taken by the petitioner was that the authority did not give notice before receiving a reply and he himself held that all the charges were proved and then proposed the penalty, which shows that he had pre-determined and because of that the petitioner was prejudiced.
9. In the reply statement, in paragraph 10, it was averred as follows:-
“10. It is submitted that there are a lot of evidences to prove the delinquencies committed by the applicant, in the documentary evidence and in the depositions of the Prosecution witnesses. Since the Enquiry Officer has not properly understood the truth, the Disciplinary Authority looked into the findings of the Enquiry Officer deeply and issued with the Show Cause Notice. Hence the punishment was imposed on the applicant based on the sufficient evidences which were left the sight of the Enquiry Officer. So there is no need for discussion about the nature of the punishment imposed on the applicant by the Appellate Authority, i.e. The Deputy Inspector General of Police, Coimbatore Range, Coimbatore, [Second Respondent] as per the instructions issued in para 7 of the orders 107 of Police Standing Orders Vol.I, and also since the Appeal petition submitted by the applicant has not valid and fresh points worthy. The Show Cause Notice issued by the First respondent contains reasons for dis-agreeing with the Not proved Enquiry Report of the Enquiry Officer. The Show Cause Notice was issued as per the orders issued in the orders 37(1) and its Note of the Police Standing Orders Vol.I and hence there is no violation of rules as stated by the applicant and hence the punishment awarded to the applicant need not be quashed.”
10. Mr.K.Venkatramani, learned Senior Counsel for the petitioner relied upon a judgment of the Supreme Court in Lav Nigam v. Chairman and MD, ITI Ltd., and another reported in (2006) 9 SCC 440. In that case, the Supreme Court held that, in case the disciplinary authority defers with the view taken by the Enquiry Officer, he is bound to give a notice setting out his tentative conclusion to the charged government servant. It was only after hearing the government servant, the disciplinary authority can arrive at a final finding of guilt and thereafter, the Government servant will again have to be served with a notice relating to the punishment proposed.
11. In the same judgment, in Paragraphs 11 and 12, the Supreme Court referred to the earlier judgment in Punjab National Bank v. Kunj Behari Misra ((1998) 7 SCC 84) and Yoginath D. Bagde v. State of Maharashtra ((1999) 7 SCC 739) and also gave final conclusion in Paragraph 13. Hence, it is necessary to refer to paragraphs 11 to 13, which are as follows:-
“11. In Punjab National Bank v. Kunj Behari Misra a Bench of this Court considered Regulation 7(2) of the Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977. The Regulation itself did not provide for the giving of any notice before the disciplinary authority differed with the view of the enquiry officer. This Court held: (SCC p.97, para 19)
The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.
12. This view has been reiterated in Yoginath D. Bagde v. State of Maharashtra. In this case also Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The Court said: (SCC p.758, para 29)
But the requirement of hearing in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the TENTATIVE reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of not guilty already recorded by the enquiring authority was not liable to be interfered with.
(See also State Bank of India v. K.P. Narayanan Kutty.)
13. We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside.”
12. In the light of the factual situation set out above and in view of the judgment in Lav Nigam’s case, (cited supra,) the order passed by the respondents cannot be sustained. The impugned order stands set aside. The writ petition stands allowed. No costs. The first respondent is given liberty to proceed from the stage of the enquiry report in accordance with the law laid down by the Supreme Court referred to above.
15.02.2011
svki
Index : Yes/No
Internet: Yes/No
To
1.The Superintendent of Police,
Nilgiris District, Udhagai.
2.The Deputy Inspector General of Police,
Coimbatore Range, Coimbatore.
K.CHANDRU,J.
Svki
W.P.No.41681 of 2006
(O.A.No.8539 of 2000)
15.02.2011