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Madras High Court
M.Selvaraj vs The Director Of Municipal … on 21 March, 2011
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.03.2011

CORAM:

THE HONOURABLE MR.JUSTICE K.CHANDRU


W.P.NOS.5343 AND 5578 OF 2011
AND CONNECTED MISCELLANEOUS PETITIONS


M.Selvaraj	 	  	 				... 	Petitioner 
									in both WPs'

Versus

1.The Director of Municipal Administration
   O/o. The Director of Municipal Administration
   Chennai  600 005.					...	Respondent  1 in 										W.P.No.5343 / 2011

2.The Commissioner of Municipal Administration
O/o. Municipal Administration
Chennai 600 005. … Respondent 1 in
W.P.No.5578 / 2011

3.The Commissioner
Kumbakonam Municipality
Kumbakonam.


4.The Commissioner 
   Tindivanam Municipality
   Tindivanam. 						...	Respondents 2 and 3 									in both WPs' 
 			

PRAYER IN W.P.NO.5343 OF 2011: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, calling for the entire records on the file of the 1st respondent in pursuant to the show cause notice issued in Roc No.45558/2001/K1 dated 10.09.2010 and quash the same.

PRAYER IN W.P.NO.5578 OF 2011: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, calling for the entire records in pursuant to the panel issued in Roc. No.49764/2010/K1 dated 21.02.2011 and the consequential promotion order issued in Roc.No.49764/2010/K1 dated 22.02.2011 on the file of the 1st respondent and quash the same and for a direction to the respondents to promote the petitioner as Class II Officer without reference to the show cause notice issued to the petitioner in Roc.No.45558/2001/K1 dated 10.09.2010 issued by the 1st respondent.

For Petitioner : Mr.P.Nethaji

For Respondents : Mr.R.Murali
Government Advocate

COMMON ORDER

Heard both sides.

2.These two writ petitions are filed by one and the same person. In the writ petition in W.P.No.5343 of 2011, the petitioner challenges the show cause notice dated 10.09.2010 issued by the first respondent – Director of Municipal Administration. The petitioner was employed as an Assistant in the third respondent Municipality. He was faced with charges under Rule 8(2) of the Tamil Nadu Municipal Services (Discipline and Appeal) Rules 1970. At the relevant time, the petitioner was working in the Kumbakonam Municipality and the charges were sought to be enquired by an Enquiry Officer, who was the Regional Director of Municipal Administration, Salem. The said officer by his report dated 16.04.2010 found that all the five charges were proved against the petitioner. Instead of issuing notice on the enquiry report, the matter was transmitted to the first respondent and the first respondent by an order dated 10.09.2010 issued a show cause notice to the petitioner to send his further representation within 15 days. It is this show cause notice, which is under challenge.

3.In the second writ petition in W.P.No.5578 of 2011, the petitioner challenges the order dated 21.02.2011 wherein and by which, the panel of Class-IV Officers found fit for promotion as ClassII Officers of the year 2010-2011 were approved by the first respondent Commissioner of Municipal Administration and the petitioner’s name do not find a place in the said list and he has come forward to challenge the said list as well as the order dated 22.02.2011 granting promotion consequent upon the earlier panel.

4.When the writ petition in W.P.No.5343 of 2011 came up for hearing on 04.03.2011, notice was directed to be issued to the respondents. Accordingly, the respondents on entering appearance, have filed a common counter affidavit dated nil (2011). When the in W.P.No.5578 of 2011 came up on 07.03.2011, without admitting the writ petition, the same was directed to be posted along with W.P.No.5343 of 2011. The fate of the second writ petition will be determined on the basis of the result of the first writ petition.

5.In the first writ petition viz., W.P.No.5343 of 2011, after the receipt of the report from the Regional Director of Municipal Administration, Salem, the first respondent, in paras 1 to 3 of the impugned order, had observed as follows:

“The undersigned is directed to enclose a copy of the report of the Inquiry Officer appointed to inquire into the charges framed in the Municipal Commissioner, Kumbakonam’s Memorandum first cited against Thiru.M.Selvaraj, formerly Assistant, Kumbakonam Municipality now Manager, Tindivanam Municipality.

2.On a careful consideration of the report of the Inquiry Officer, 4th cited, the undersigned for the reasons stated in the Annexure to this memo, hold that all the charges framed against Thiru M.Selvaraj, formerly Assistant, Kumbakonam Municipality now Manager, Tindivanam Municipality has held proved which the inquiry officer has held as not proved.

3.Thiru M.Selvaraj, formerly Assistant, Kumbakonam Municipality now Manager, Tindivanam Municipality is hereby given an opportunity of making further representation on the findings on the charges referred to in para 2 above.”

The question is whether this conduct of the first respondent is in tune with the dictum laid down by the Supreme Court.

6.The learned counsel for the petitioner contended that the show cause notice was an empty formality and in case the Disciplinary Authority, disagreeing with the findings of the Enquiry Officer, he must record reasons independently for disagreement and the reason for disagreement must be specific in respect of each charge and further after disagreeing with the enquiry report, without recording any reason, such a notice cannot be granted and it will be invalid in the eye of law.

7.In the counter affidavit, in para 15, it is stated that the first respondent has clearly mentioned the reasons for holding the charges levelled against the petitioner as proved, in the annexure to the Memorandum dated 10.09.2010 and that the petitioner had suppressed the dissent note recorded.

8.However, in a case of this nature, the Supreme Court has held that the Disciplinary Authority is bound to give a notice setting out his tentative conclusions to the charged employee and it is only after hearing the said employee, the Disciplinary Authority can arrive at a final finding of guilt. On the contrary, from the portion of the order extracted from the impugned order, there is no scope for tentative conclusion or final conclusion and the authority even before sending his dissent note has found that the petitioner was guilty of all the charges. Therefore, it is necessary to refer to the judgment of the Supreme Court in Lav Nigam vS. Chairman & MD, ITI Ltd. reported in 2006 (9) SCC 440. The Supreme Court in paras 9 to 14, had observed as follows:

“9.Challenging the orders of the respondent authorities the appellant filed a writ petition before the High Court. The appellant specifically raised the issue that the disciplinary authority was obliged to give a separate show-cause notice if the disciplinary authority differed with the inquiry officer. The High Court also held that there was no need to give two separate show-cause notices one before the disciplinary authority found against the employee while differing with the view of the inquiry officer, and another against the proposed punishment. It was further held that the two notices could be combined in one. The writ petition was accordingly dismissed.

10.The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed.

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 Kutty3.)

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.

14.The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the appellant indicating his tentative disagreement with the findings of the inquiry officer.”

9.In the light of the binding precedent and the first respondent having committed grave mistake of issuing a pre-concluded notice, this Court has no other alternative except to allow the writ petition. Hence, the writ petition in W.P.No.5343 of 2011 stands allowed and the impugned order stands set aside. As directed by the Supreme Court in Lav Nigam’s case (cited supra), there is no impediment for the respondents to conduct an enquiry from the stage of issuance of a fresh show cause notice, in accordance with the rules and the decision laid down by the Supreme Court.

10.In the second writ petition viz., W.P.No.5578 of 2011, the petitioner is not only seeking to set aside the panel, but also the consequent promotion order. However, he has not made any one of the persons in the promotion panel as well as in the promotion order as party to the writ petition. Therefore, this writ petition is dismissed on the short ground of non-joinder of proper parties. In any event, since the show cause notice issued by the competent authority which is covered in W.P.No.5343 of 2011, the petitioner’s promotion will not stand relegated until the disposal of the disciplinary proceedings initiated against him is concluded. In one way or other, there is no necessity to grant any other order in W.P.No.5578 of 2001 and the same stands dismissed.

11.In the result, the writ petition in W.P.No.5343 of 2011 stands allowed and the writ petition in W.P.No.5578 of 2011 stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

TK

To

1.The Director of Municipal Administration
O/o. The Director of Municipal Administration
Chennai 600 005.

2.The Commissioner of Municipal Administration
O/o. Municipal Administration
Chennai 600 005.

3.The Commissioner
Kumbakonam Municipality, Kumbakonam.

4.The Commissioner
Tindivanam Municipality,
Tindivanam


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