IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 13-8-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.15752 of 2008 and M.P.No.1 of 2008 W.P.No.15753 of 2008 and M.P.No.1 of 2008 V.M. Sivanandam ... Petitioner in both writ petitions Vs. 1. The Tamil Nadu Slum Clearance Board, rep.by its Chairman, No.5, Kamarajar Salai, Chennai - 5. ... 1st Respondent in W.P.15752/2008
2. Chairman
Tamil Nadu Slum Clearance Board,
No.5, Kamarajar Salai,
Chennai – 5 … 2nd Respondent in W.P.15752/2008
1st Respondent in W.P.15753/2008
3. Managing Director,
Tamil Nadu Slum Clearance Board,
No.5, Kamarajar Salai,
Chennai – 5. … 3rd Respondent in W.P.15752/2008
2nd Respondent in W.P.15753/2008
4. A.Nedunchezhiyan … 4th Respondent in W.P.15752/2008
3rd Respondent in W.P.15753/2008
Prayer in W.P.No.15752/2008: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records of the second respondent issued in Na.Ka.No.A1/12479/2007, dated 31.12.2007 and the proceedings of the first respondent issued in Appeal in Na.Ka.No.A1/12479/2007, dated 30.5.2008 and quash the same as illegal and direct the respondents to determine the pay and retirement benefits of the petitioner without reference to the impugned punishment.
Prayer in W.P.No.15753 of 2008: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records of the first respondent in Na.Ka.No.AI/12479/2007, dated 2.4.2008 and quash the same as illegal and direct the respondents to determine the pay and retirement benefits of the petitioner without reference to the impugned punishment.
For Petitioner : Mr.S.Vadivelu
For Respondents : Mr.Y.Bhuvaneshkumar
COMMON ORDER
Prayer in W.P.No.15752 of 2008 is to quash the order passed by the second respondent dated 31.12.2007, confirmed by the first respondent by order dated 30.5.2008 and to direct the respondents to determine the pay and terminal benefits of the petitioner without reference to the punishment imposed.
2. In W.P.No.15753 of 2008, petitioner has prayed to quash the order dated 2.4.2008 passed by the first respondent wherein petitioner was imposed with the punishment of Censure and treated the interim period of suspension from 10.7.2007 to 13.12.2007 as punishment.
3. The case of the petitioner is that he entered into the service of the Tamil Nadu Slum Clearance Board in the year 1972 and he was promoted as Divisional Accountant in the year 1991 and continued in the said post till he retired from service on 31.12.2007. On 8.2.2007, this Court in Crl.O.P.No.8189 of 2006, W.P.Nos.6841 of 2006 and 7139 of 2006 as well as in Contempt Application No.374 of 2006, passed an order to give Cable T.V. Connection for Slum Clearance Board residential houses at Okkiam Thorapakkam. Petitioner being the Divisional Accountant worked in the Divisional Office did not receive the copy of the Order as his job did not relate to the conduct of public auction for Cable T.V. connection, which according to the petitioner is the function of the 4th respondent viz., the Secretary of Slum Clearance Board. By order dated 17.7.2007, petitioner was placed under suspension on the alleged ground that he has not complied with the direction issued in Contempt Application No.374 of 2006. On 17.8.2007, a charge memo was issued by the second respondent framed under Rule 8(2) of the Tamil Nadu Slum Clearance Board (Discipline and Appeal) Rules, 1972, alleging that the petitioner did not implement the order of the High Court in connection with the Cable T.V. Connection for the residential houses bearing R.C.Nos.9201 to 9500 at Okkiyam-Thorapakkam and the amount of Rs.24,000/- was received as rent on 19.4.2007, which was not consistent with the High Court order. As the petitioner denied the charge, an enquiry was conducted on 12.12.2007. In the Enquiry Officer’s report finding was given to the effect that all the four charges were not proved against the petitioner. On 14.12.2007, third respondent enclosed a copy of the Enquiry Officer’s report dated 12.12.2007 and requested the petitioner to submit further representation/remarks. On receipt of the said notice on 18.12.2007, petitioner sent a reply stating that as the Enquiry Officer found all the charges not proved, further action may be dropped. By order dated 31.12.2007 petitioner was allowed to retire. However, in the very same order, a punishment of ‘Censure’ was imposed stating that the second respondent has examined the report of the Enquiry Officer and the same was not acceptable and the charges are proved. The appeal filed by the petitioner against the order before the first respondent was also dismissed on 30.5.2008. Hence the petitioner challenged the said orders as stated supra in W.P.No.15752 of 2008. By order dated 2.4.2008, the first respondent treated the period of interim suspension from 10.7.2007 to 13.12.2007 (157 days) also as the period of punishment. The said order is also challenged in W.P.No.15753 of 2008.
4. The learned counsel for the petitioner submitted that the Enquiry Officer having found that the petitioner was not guilty of the charges levelled against him and having directed the petitioner to submit his remarks for the said Enquiry Officer’s report on 14.12.2007, without stating anything about the disagreement with regard to the Enquiry Officer’s finding and the petitioner having given his remarks to drop the charges based on the Enquiry Officer’s report and also to treat the period of suspension as duty period, the respondents, without communicating any differing view, have chosen to impose the punishment of censure and the same is not only against the principles of natural justice, but also against the decisions of the Supreme Court reported in JT 1998 (5) SC 548 (Punjab National Bank and Others v. Sh.Kunj Behari Misra) and JT 2006 (4) SC 376 (Ranjit Singh v. Union of India & Others). The learned counsel further submitted that having imposed the punishment of censure, again treating the interim period of suspension as punishment is also unsustainable since it amounts to double punishment for single charge memo.
5. Heard the learned counsel for the respondents, who in turn submitted that even though the Enquiry Officer found the charges as not proved, after getting remarks from the petitioner with regard to the Enquiry Officer’s Report only a lenient punishment of censure was awarded, which would not affect the petitioner who has attained the age of superannuation. The learned counsel further submitted that the interim period of suspension was treated as punishment of suspension only to deny salary for the above period and the same cannot be treated as double punishment.
6. I have considered the rival submissions of the learned counsel appearing for the petitioner as well as respondents.
7. The charges levelled against the petitioner are as follows:
“Charge No.1: In the matter of providing Cable T.V. Connection for the residential houses bearing RC.No.9201 to 9500 at the Chennai Okkiyam-Turaipakkam plan area, with ulterior motive and for undue enrichment, wantonly failed to implement the Madras High Court order.
Charge No.2: Acted in contravention to the order of the Madras High Court and received Rs.24,000/- from one Mr.Umar Farooq by misrepresenting that the lease period was renewed and thereby was instrumental in issuing receipt No.163986.
Charge No.3: Intentionally violated the order of the Madras High Court and recommended to the Board for renewal of the lease period in favour of Umar Farooq.
Charge No.4: By not performing the duty of the Divisional Accountant with due deligence, was responsible for initiation of the contempt proceeding.”
As per the Enquiry Officer’s report dated 12.12.2007, all the above four charges were found not proved. The said Enquiry Officer’s report was forwarded to the petitioner by the third respondent on 14.12.2007 and requested the petitioner to submit his remarks. Petitionr submitted his remark to the said enquiry Officer’s report on 18.12.2007 and statd that all the charges levelled against the petitioner are not proved as per the Enquiry Officer’s report, which clearly establishes the innocence of the petitioner and ultimately requested to relieve the petitioner from the said charges and treat the period of suspension as duty period.
8. From the pleadings it is evident that no differing view was taken by the disciplinary authority/second respondent and consequently no explanation was sought for from the petitioner. In the order dated 31.12.2007 the second respondent states that the Enquiry Officer’s report was not acceptable as the petitioner failed to take action as per the Court order, the charges levelled against the petitioner are proved and taking note of the date of retirement of the petitioner on 31.12.2007, a lenient view was taken and a punishment of ‘Censure’ is ordered. Petitioner was also permitted to retire on 31.12.2007. In the order dated 2.4.2008, the second respondent taking note of the punishment imposed viz., Censure, ordered to treat the suspension period from 10.7.2007 to 13.12.2007 also as punishment. The appeal filed against the order imposing the punishment of censure was also dismissed by the first respondent by resolution No.33/417 dated 9.5.2008, which was communicated to the petitioner on 30.5.2008.
9. The Tamil Nadu Slum Clearance Board (Discipline and Appeal) Rules, 1972, is the service rule applicable to the petitioner. In the said Rules it is stated that ‘Censure’ is one of the penalty, which can be imposed against a delinquent officer. Since the Enquiry Officer has given a clear finding in favour of the petitioner for all the charges and admittedly no differing view was taken by the second respondent before passing the impugned order and no opportunity was given to the petitioner before taking differing view at the time of imposing punishment, definitely the principles of natural justice is violated. The reasons stated by the second respondent to impose punishment of censure and treating the interim period of suspension as punishment are cryptic and without any valid reasons.
10. Similar issue was considered by the Supreme Court in the decision reported in JT 1998 (5) SC 548 = (1998) 7 SCC 84 (Punjab National Bank and Others v. Sh.Kunj Behari Misra). In paragraphs 16 to 18, the Honourable Supreme Court held as follows:
“16. In Karunakar case the question arose whether after the 42nd Amendment of the Constitution, when the enquiry officer was other than a disciplinary authority, was the delinquent employee entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes decision on the question of guilt of the delinquent. It was sought to be contended in that case that as the right to show cause against the penalty proposed to be levied had been taken away by the 42nd Amendment, therefore, there was no necessity to give to the delinquent a copy of the enquiry report before the disciplinary authority took the final decision as to whether to impose a penalty or not. Explaining the effect of the 42nd Amendment the Constitution Bench at p.755 observed that: (SCC para 28)
All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officers report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.
The Court explained that the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, the enquiry officers report and the delinquent employees reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. It is the second right which was taken away by the 42nd Amendment but the right of the charged officer to receive the report of the enquiry officer was an essential part of the first stage itself. This was expressed by the Court in the following words: (SCC p.754, para 26)
26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the enquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute an additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officers findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.
18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officers report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case.”
In the subsequent decision reported in JT 2006 (4) SC 376 = (2006) 4 SCC 153 (Ranjit Singh v. Union of India & Others) also the Supreme Court took similar view. In paragraphs 20 to 22 the Supreme Court held as follows:
“20. In Punjab National Bank v. Kunj Behari Misra this Court has clearly held that the principles of natural justice are required to be complied with by the disciplinary authority in the event he intends to differ with the findings of the enquiry officer observing: (SCC p.97, para 19)
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.
21. The said decision has been followed by this Court in State Bank of India v. K.P. Narayanan Kutty wherein it was clearly held that in such an event the prejudice doctrine would not be applicable, stating: (SCC pp.454-55, para 6)
6. In para 19 of the judgment in Punjab National Bank case2 extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulation 7(2) [Rule 50(3)(ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case] and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court.
22. In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the disciplinary authority. He was also required to apply his mind to the materials on record. The enquiry officer arrived at findings which were in favour of the appellant. Such findings were required (sic sought) to be overturned by the disciplinary authority. It is in that view of the matter, the power sought to be exercised by the disciplinary authority, although not as that of an Appellate Authority, but is akin thereto. The inquiry report was in favour of the appellant but the disciplinary authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his part, in the absence of any show-cause filed by the appellant, to analyse the materials on record afresh. It was all the more necessary because even CBI, after a thorough investigation in the matter, did not find any case against the appellant and thus, filed a closure report. It is, therefore, not a case where the appellant was exonerated by a criminal court after a full-fledged trial by giving benefit of doubt. It was also not a case where the appellant could be held guilty in the disciplinary proceedings applying the standard of proof as preponderance of the probability as contrasted with the standard of proof in a criminal trial i.e. proof beyond all reasonable doubt. When a final form was filed in favour of the appellant, CBI even did not find a prima facie case against him. The disciplinary authority in the aforementioned peculiar situation was obligated to apply its mind on the materials brought on record by the parties in the light of the findings arrived at by the inquiry officer. It should not have relied only on the reasons disclosed by him in his show-cause notice which, it will bear repetition to state, was only tentative in nature. As the Appellate Authority in arriving at its finding, laid emphasis on the fact that the appellant has not filed any objection to the show-cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hand appears to be an exceptional one as the appellant was exonerated by the inquiry officer. He filed a show-cause but, albeit after some time the said cause was available with the disciplinary authority before he issued the order of dismissal. Even if he had prepared the order of dismissal, he could have considered the show-cause as he did not leave his office by then. The expression communication in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer. (See State of Punjab v. Amar Singh Harika.)”
11. In the case on hand, as admittedly no differing view was communicated and explanation sought for from the petitioner, the action of the second respondent in imposing the punishment of censure, which is stated as a penalty under the Tamil Nadu Slum Clearance Board (Discipline and Appeal) Rules, 1972, and based on the said censure treating the period of interim suspension as punishment to deny the benefits due to the petitioner, cannot be sustained.
12. Consequently the impugned orders are set aside. The writ petitions are allowed with a direction to the respondents to determine the pay and terminal benefits of the petitioner and pay the same within six weeks from the date of receipt of copy of this order. No costs. Connected miscellaneous petitions are closed.
vr
To
1. The Chairman, Tamil Nadu Slum Clearance Board,
No.5, Kamarajar Salai, Chennai – 5.
2. The Managing Director, Tamil Nadu Slum Clearance Board,
No.5, Kamarajar Salai,
Chennai 5