IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 18-6-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.47725 of 2006 M.P.No.2 of 2006 R. Sadasivam ... Petitioner Vs. 1. Wild Life Warden, Wild Life Warden Office, Teynampet, Chennai 600 006. 2. The Director, Arignar Anna Zoological Park, Vandalur, Chennai 600 048. ... Respondents The prayer in the writ petition is to issue a writ of certiorarified mandamus calling for the records relating to the proceedings of the first respondent vide Che.Mu.Aa.No.3990/2003/P2, culminating in his order dated 19.4.2004 as confirmed by the order of the second respondent vide Na.Ka.No.1679/2004/P1, dated 14.12.2004, quash the same and direct the first respondent to pay to the petitioner his arrears of salary of Rs.91,135/- accrued upto November, 2006 and his monthly salary at Rs.12,165/- from December 2006 onwards. For Petitioner : Mr.N. Rajan For Respondents : Mr.K.Rajasekar, Government Advocate (Forests) O R D E R
The prayer in the writ petition is to quash the order of punishment passed by the first respondent dated 19.4.2004 confirming the order passed by the second respondent dated 14.12.2004 and direct the first respondent to pay the petitioner’s arrears of salary of Rs.91,135/- accrued upto November, 2006 and the monthly salary at the rate of Rs.12,165/- from December, 2006 onwards.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) The petitioner is employed in Guindy Children’s Park as Driver. While he was working in the Headquarters Wildlife Range, Velacherry, Chennai-32, the first respondent placed the petitioner under suspension by order dated 23.10.2003 pending contemplation of enquiry into grave charges.
(b) The said order of suspension was challenged by the petitioner by filing O.A.No.1340 of 2004 before the Tamil Nadu Administrative Tribunal. The original application was disposed of with direction to the respondent to reinstate the petitioner and extract work by granting liberty to proceed against the petitioner as per the rules by order dated 29.3.2004 and the petitioner was restored to duty on 26.4.2004.
(c) A charge memo was issued to the petitioner on 13.11.2003 stating that the petitioner did not obey the orders of the higher officials of the Range, negligent in his duties, and that, the petitioner was rude towards the Forester and other Officers.
(d) The reason for issuing the charge memo was that the petitioner refused to drive the Jeep (TAH 1844) for carrying two accused persons involved in a forest offence to the VII Judicial Magistrate’s Court, George Town, Chennai. According to the petitioner, on 23.10.2003, when the petitioner was asked to drive a Jeep at about 4.45 p.m., there was rain; in the said jeep the wiper was not working and therefore petitioner politely told the Officer that he will drive the vehicle once the rain was over; and after the rain was over, he expressed his readiness to drive the vehicle(jeep).
(e) According to the petitioner, when he was about to start the jeep, the Forester got off from the vehicle to attend a phone call and after attending the phone call, he came back and told that he need not drive the jeep for the said trip and engaged one Lakshmanan to drive the jeep. Petitioner was asked to wait in the office. The said Lakshmanan drove the jeep along with the accused persons.
(f) Due to the above said reason the petitioner was placed under suspension. Petitioner submitted his explanation on 25.2.2004 and denied the charges. Enquiry Officer was appointed, who conducted enquiry and the petitioner due to his ill-health could not participate in the enquiry. The Enquiry Officer proceeded with the enquiry in the absence of the petitioner and submitted the report on 16.3.2004.
(g) The petitioner was not furnished with the Enquiry Officer’s report before the same was accepted by the first respondent and by order dated 19.4.2004 the first respondent passed an order of punishment imposing stoppage of increment for six years with cumulative effect. The petitioner challenged the said order by filing appeal before the second respondent, which was rejected by order dated 14.12.2004, against which this writ petition is filed.
(h) The contentions raised in the writ petition are that the charges issued against the petitioner are vague; that the petitioner’s explanation for not driving the Jeep at the relevant point of time due to rain and absence of wiper in the vehicle was not considered; that no finding is given by the Enquiry Officer with regard to the explanation given by the petitioner and no reason is given as to why the same cannot be accepted; that the Enquiry Officer failed to prove the charges by calling independent witnesses; that the Enquiry Officer proceeded with the enquiry even though the petitioner was not able to attend the enquiry due to his illness; that the finding of the Enquiry Officer is one sided; that the first respondent relying on the said report and without considering the explanation submitted by the petitioner imposed the punishment; that the first respondent also has not discussed anything with regard to the manner in which the charges were proved and whether he was satisfied with the Enquiry Officer’s finding and has not independently applied his mind; and that, the appellate authority rejected the appeal by a non-speaking order, without following Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
3. The first respondent filed counter affidavit contending that the petitioner’s explanation having not been found satisfactory, Enquiry Officer was appointed and the petitioner failed to utilise the opportunity given and based on the Enquiry Officer’s findings, the first respondent passed the order of punishment and the appellate authority having concurred with the punishment given by the first respondent, rejected the said appeal filed by the petitioner and no separate and elaborate reason need be given by the appellate authority.
4. The learned counsel for the petitioner reiterated the grounds raised as stated supra and contended that in every stage there is illegality, not only in the procedures, but also on merits. The learned counsel further submitted that even assuming that the allegation is proved, the punishment imposed viz., withholding of increment for six years with cumulative effect, which affects the retirement benefits, is unproportionate to the gravity of the allegations/charges.
5. The learned Government Advocate appearing for the respondents submitted that the petitioner having disobeyed the order of the superior Officer and having failed to participate in the enquiry to disprove the allegations levelled against him, is not entitled to challenge the enquiry report as well as the punishment imposed on the basis of the enquiry report.
6. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Government Advocate.
7. From the narration of the facts as well as the contentions raised in the affidavit and counter affidavit and the legal submissions made by the learned counsels on either side, the following issues arise for consideration in this writ petition,
(1) Whether the charges framed against the petitioner are
vague ?
(2) Whether the Enquiry Officer’s finding is justified?
(3) Whether the Disciplinary Authority has followed the
principles of natural justice while passing the order of
punishment ?
(4) Whether the appellate authority has considered the appeal
filed by the petitioner as required under Rule 23 of the Tamil
Nadu Civil Services (Discipline and Appeal) Rules ?
(5) Whether the punishment imposed against the petitioner is
unproportionate to the gravity of the allegations levelled
against the petitioner ?
Issue No.1:- Whether the charges framed against the petitioner are vague ?
8. The charges levelled against the petitioner vide charge memo dated 13.11.2003 are as follows:
1. The petitioner did not obey the orders of the higher officers of the range and the petitioner was negligent in his duties.
2. The petitioner was rude towards the Forester and other Officers.
9. The Charge memo dated 13.11.2003 is with Annexures I to IV. The said charge memo was issued on the basis of the report given by the Forester dated 23.10.2003. The allegations levelled against the petitioner are that the petitioner disobeyed the orders of the higher officials and rudely behaved with the high level officers. Since the incident dated 23.10.2003 as stated in the report of the Forester being the basis for the Charge memo and the petitioner having understood the charges and submitted his explanation stating the reasons for not driving the Jeep on 23.10.2003 at about 4.45 p.m., the petitioner is not entitled to contend that the charges levelled against him are vague as the same are without particulars. Vagueness of the charges can be urged only if there is no specific averments about the incident, the date/time. In this case, the date of the alleged disobedience is specifically mentioned and the petitioner has also submitted his defence for the said charges. Hence the contention raised regarding vagueness in the charge memo is rejected.
Issue No.2:- Whether the Enquiry Officer’s finding is justified ?
10. It is the case of the petitioner that due to rain and non-availability of wiper in the Jeep petitioner was unable to drive the jeep as directed by the Forester at about 4.45 p.m. on 23.10.1993 and after the rain was over, petitioner and the accused persons got into the Jeep. On getting phone call the Forester got down from the jeep and after attending phone call, the petitioner was directed not to drive the Jeep and one Lakshmanan was directed to drive the Jeep.
11. The Enquiry Officer has not given any finding as to whether there was rain at the relevant point of time and whether there was any substance in the contention of the petitioner that there was no wiper in the Jeep. The said aspect is very relevant to consider the culpability of the petitioner. In the absence of such findings given by the Enquiry Officer and merely because of the fact that the Jeep was used prior to 23.10.2003, it cannot be presumed that the Jeep was in perfect condition at the relevant point of time. Only if there is a positive finding that the wiper was functioning, one can understand that the petitioner refused to drive the jeep in spite of the directions of his superior. Similarly, if there is a specific finding that there was no rain, in the absence of wiper in the jeep, petitioner cannot take a defence that he could not drive the jeep due to rain.
12. In the light of the above finding, I am of the view that the Enquiry Officer’s findings are perverse finding as relevant issues raised are not considered.
Issue No.(3): Whether the Disciplinary Authority has followed the principles of natural justice while passing the order of punishment ?
13. The Disciplinary Authority failed to communicate the Enquiry Officer’s report dated 16.3.2004 before the same is accepted by him and a show cause notice regarding the proposed penalty was issued on 18.3.2004. Along with the said show cause notice Enquiry Officer’s report was enclosed. Petitioner submitted his reply to the show cause notice on 3.4.2004 and stated as to why the Enquiry Officer’s report shall not be accepted by the Disciplinary Authority. The Disciplinary Authority neither discussed about the issue as to how the charges were proved nor considered the objection raised regarding the Enquiry Officer’s report and also the explanation submitted by the petitioner for the show cause notice. After narrating the facts, the first respondent/Disciplinary Authority imposed the impugned punishment by merely stating that the charges were proved and the explanation submitted cannot be accepted and imposed the punishment of withholding of increment for six years with cumulative effect, affecting his terminal benefits.
14. If the Disciplinary Authority is other than the Enquiry Officer, before accepting the enquiry report, the Delinquent Officer should be served with the enquiry report and his remarks should be obtained before accepting the said findings, is well settled in the decision of the Supreme Court reported in (1993) 4 SCC 727 (Managing Director, ECIL v. B.Karunakar) wherein in paragraphs 26 and 27 it is held as follows:
“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 inquiry, 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 any 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.
27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, 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, 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. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employees right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.”
(Emphasis Supplied)
Issue No.(4): Whether the appellate authority has considered the appeal filed by the petitioner as required under Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules ?
15. The petitioner preferred an appeal before the second respondent by raising various contentions including his defence that due to rain and absence of wiper in the jeep, he was unable to drive the jeep, taking note of the safety of the person travelling in the jeep. It is also specifically stated in the memorandum of grounds that the explanation submitted by the petitioner on 25.2.2004 has not been taken into account by the Enquiry Officer as well as the Disciplinary Authority. According to the petitioner his request to postpone the enquiry due to illness was not considered by the Enquiry Officer and thereby the petitioner was denied the right to cross-examine the witnesses and hence requested the second respondent to set aside the order of punishment by allowing the appeal.
16. The appellate authority rejected the appeal by a cryptic order dated 14.12.2004 by stating that the Jeep having been driven by another person, the defence made by the petitioner that he was not in a position to drive the Jeep cannot be accepted and the appeal is rejected.
17. How the appellate authority shall consider the statutory appeal filed against the orders of punishment is mentioned in Rule 23 of the Tamil Nadu civil Services (Discipline and Appeal) Rules, which reads as follows:
“Rule 23. Power and Procedure of the Appellate Authorities.
(1) In the case of an appeal against an order imposing any penalty specified in Rule 8 or 9 appellate authority shall consider-
(a) Whether the facts on which the order was based have been established;
(b) Whether the facts established afford sufficient ground for taking action; and
(c) Whether the penalty is excessive, adequate or inadequate and pass orders:
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;
Provided that-
(i) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv), (v)(c), (vi), (vii) and (viii) of Rule 8 and an inquiry under sub-rule (b) of Rule 17 has not already been held in the case, the appellate authority shall, subject to the provisions of sub-rule (c) of Rule 17, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of sub-rule (b) of Rule 17 and thereafter, on a consideration of the proceeding of such inquiry make such orders as it may deem fit;
(ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv), (v)(c), (vi), (vii) and (viii) of Rule 8 and an inquiry under sub-rule (b) of Rule 17 has already been held in the case, the appellate authority shall make such orders as it may deem fit; and
(iii) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of sub-rule (b) of Rule 17 of making representation against such enhanced penalty;
(2) Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers for reasons to be recorded in writing, that the error or defect was not material and has neither caused injustice to the person concerned nor affected the decision of the case.”
The purport of the said rule was considered by the Division Bench of this Court in the decision reported in (1983) 2 MLJ 513 (G.Srinivasan v. The Government of Tamil Nadu, represented by the Commissioner and Secretary to Government, Revenue Department, Madras-9 and others) and in paragraph 8 the Division Bench held thus,
“8. ………..where the power of the appellate authority is circumscribed by a statutory provision such as rule 23 as in this case, the appellate authority should act within the confines of that rule and he cannot pass an order arbitrarily without considering the matters referred to in rule 23. We are therefore of the view that the order of the Board of Revenue, dated 4th September, 1976, stands vitiated for violation of Rule 23. On this ground, the order of the Board of Revenue which confirms the orders of dismissal passed against the appellant will stand quashed and the Board of Revenue has to pass a fresh order on the appeal filed by the appellant which should be treated as pending.”
(Emphasis Supplied)
A Division Bench of this Court, in which I was also a party, in the decision reported in 2008 WLR 86 (The Joint Commissioner of Police & Another v. G.Anandan) considered a similar provision, namely Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, and took the same view. In paragraph 26 of the Judgment the Division Bench held as follows:
“26. ………………………
(b) The Supreme Court in the decision reported in AIR 1986 SC 1040 = (1986) 2 SCC 651 (R.P.Bhat v. Union of India) considered similar provision i.e, Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In paragraphs 3 to 5 the Supreme Court held thus:
“3. Having heard the parties, we are satisfied that in disposing of the appeal the Director General has not applied his mind to the requirements of Rule 27(2) of the Rules, the relevant provisions of which read as follows:
27. (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said Rules, the appellate authority shall consider:
(a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;
and pass orders
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.
4. The word consider in Rule 27(2) implies due application of mind. It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.
5. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside.”
The above decision was followed by the Supreme Court in its latter judgment reported in (2006) 4 SCC 713 Narinder Mohan Arya v. United India Insurance Company Limited & Others).
(c) Another Division Bench of this Court in 2004 (3) LW 32 (M.Nagarajan & Others v. The Registrar, High Court, Madras-600 104 and another) following the above referred decision in AIR 1986 SC 1040 (cited supra), set aside the order of the appellate authority for non-compliance of Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and remitted the matter back to the appellate authority to pass fresh orders by following the said rules.
11. In the light of the above decisions and having regard to Rule 6(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, quoted above to be followed in this case by the appellate authority, the order of the appellate authority cannot be sustained. ………..
13. In the result, we set aside the order of the appellate authority dated 12.8.2006 and remit the matter to the first appellant herein to pass fresh orders following Rule 6(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, within a period of four weeks from the date of receipt of copy of this order. The order of the learned single Judge is set aside.”
In the above cited decision viz., (2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank and Others) in paragraph 23 the Supreme Court held that if orders of the Disciplinary Authority and the Appellate Authority affect the civil rights of the employee, reasons must be stated for arriving at the decisions. Thus, the order of the appellate authority is unsustainable.”
18. Applying the above decisions to the facts of this case, I hold that the order passed by the appellate authority is unsustainable. In view of the inherent defect in the Enquiry Officer’s finding and in the order of the first respondent, no purpose would be served by remitting the matter to the appellate authority.
Issue No.(5): Whether the punishment imposed against the petitioner is unproportionate to the gravity of the allegations levelled against the petitioner ?
19. The allegations levelled against the petitioner is insubordination, negligence and rude behaviour towards the high level officials. Insofar as the allegation regarding rude behaviour, no evident is adduced and the Enquiry Officer has not given any finding. The charge having been framed by the department, even if the petitioner has not appeared, it is for the department to prove the charge against the petitioner and charge No.2 is held proved on the ground that the petitioner has not utilised the opportunity given to prove his innocence and there is no explanation for the said charge. In the explanation submitted by the petitioner he has not accepted the second charge. It is well settled in law that once the charge is not accepted/admitted, it is for the disciplinary authority to prove the same even if exparte enquiry is conducted. The second charge having not been proved and a finding is rendered only regarding the first charge and the said finding having been found erroneous as stated supra, the punishment imposed against the petitioner that too withholding of increments for six years with cumulative effect, affecting pensionary benefits, is definitely unproportionate.
20. The Disciplinary Authority, Appellate Authority and the Tribunal while considering the case of the Delinquent Officer is bound to consider the proportionality of the punishment imposed even if there is no infirmity in the findings of the Enquiry Officer as held in the judgment of the Supreme Court reported in 2010 (2) SCC 497 (G.Vallikumari v. Andhra Education Society and Others). In paragraphs 19 and 20 of the Judgment the Supreme Court held thus,
“19. In his order, the Chairman of the Managing Committee did refer to the allegations leveled against the appellant and representation submitted by her in the light of the findings recorded by the inquiry officer but without even adverting to the contents of her representation and giving a semblance of indication of application of mind in the context of Rule 120(1)(iv) of the Rules, he directed her removal from service. Therefore, there is no escape from the conclusion that the order of punishment was passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the concerned authority.
20. A careful reading of the Tribunal’s order shows that though it did not find any procedural infirmity in the inquiry against the appellant, the order passed by the Chairman of the Managing Committee was nullified only on the ground of violation of Section 8(2) of the Act read with Rule 120(2) of the Rules inasmuch as permission of the Director was not obtained before removing the appellant from service. The High Court set aside the order of the Tribunal and indirectly restored the order passed by the Chairman of the Managing Committee because it was of the view that Section 8(2) is not applicable to the minority institutions. Neither the Tribunal nor the Division Bench of the High Court dealt with and decided the appellant’s challenge to the findings recorded by the inquiry officer and her plea that the extreme penalty of removal from service imposed on her was not justified because she was not found guilty of any serious misconduct.”
As no allegation is proved against the petitioner as per the legal requirement, I am unable to remit the case to the first respondent on this ground also.
21. On the basis of the findings given to issue Nos.(2) to (5), the impugned orders are set aside. The respondents are directed to calculate the benefits arising out of this order and pay the same to the petitioner within a period of six weeks from the date of receipt of copy of this order.
The writ petition is disposed of with the above directions. No costs. Connected miscellaneous petition is closed.
vr
To
The Presiding Officer,
II Additional Labour Court,
Chennai