IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30/06/2006
CORAM
THE HON'BLE MR.JUSTICE P.K.MISRA
AND
THE HON'BLE MR.JUSTICE R.SUDHAKAR
W.P.No.5134 of 2002
The Director of Rural Development
Panagal Maaligai,
Chennai 15. .. Petitioner
-Vs-
1. A.Periyanayagam
2. The Registrar,
Tamil Nadu Administrative Tribunal,
Chennai. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a writ of certiorari, calling for the records
pertaining to the order made in O.A.No.6727 of 1995 dated 23.4.2001 on the
file of the Tamil Nadu Administrative Tribunal, the second respondent herein
and to quash the same.
!For petitioner : Mr.E.Sampathkumar
Govt. Advocate
^For respondents: Mr.V.Suthakar for R1
:ORDER
R.SUDHAKAR,J.
The Director of Rural Development, aggrieved by the order of the
Tribunal in O.A.No.6727 of 1995, dated 23.4.2001, has filed the present writ
petition.
2. First respondent herein is the contesting respondent. The case of
first respondent is as follows:
First respondent, the applicant before the Tribunal, who was working
as a Rural Welfare Officer Grade-II in the Thandarampet Panchayat Union, North
Arcot Ambedkar District, (Vellore District), was charged with the offence of
accepting a total sum of Rs.130/- on three occasions between July 1984 and
December 1984 from one P.Ramakrishnan of Changam Taluk, promising him to get a
loan from the Co-operative Society for purchasing a sheep unit. A charge memo
was issued and enquiry was conducted by the Tribunal for disciplinary
proceedings and on the basis of the enquiry report, it was found that the
charges levelled against the first respondent/applicant are proved and the
first respondent was awarded punishment of reduction of time scale of pay to a
minimum period of five years by proceedings dated 9.9.1995 and this order was
challenged by the first respondent before the Tribunal.
3. The second respondent-Tribunal, by the impugned order, came to the
conclusion that some evidence was available for the charge. However, it held
that the order was passed in violation of principles of natural justice, and
therefore, quashed the same. The Tribunal, while considering the case of the
first respondent/applicant, held as follows:
“10. On the point of violation of principles of natural justice, it
is clear that the respondent while issuing the show cause notice accompanied
with the report of the Enquiry Officer, has come to the conclusion to award
the punishment to the applicant. The applicant should have supplied with the
Enquiry Officer’s report before the respondent comes to the conclusion of
awarding punishment. As this has not been done, the judgment referred to
above by the applicant’s counsel is squarely applicable to this case.
Therefore, the principle of natural justice has been violated.”
Further, the Tribunal also considered the claim of the first respondent that
there was no evidence to hold him guilty, as P.W.5, a labourer who had given
evidence after six to seven years and was not able to tell the name of the
accused officer to whom he had paid the amount and the purpose for which the
amount has been paid.
4. On the first issue, the Tribunal relied on the judgment of the
Supreme Court reported in AIR 1994 SC 1074 (Managing Director, ECIL vs.
B.Karunakar) and in particular to paragraph 7 at page 1091 of that judgment,
which reads as follows:
“Hence, it has to be held that when the Inquiry Officer is not the
disciplinary authority, the delinquent employee has right to receive a copy of
the Inquiry Officer’s report before the disciplinary authority arrives at its
conclusions with regard to the guilt or innocence of the employee with regard
to the charges levelled against him. That right is a part of the employee’s
right to defend himself against the charges levelled against him. A denial of
the Inquiry Officer’s report before the disciplinary authority takes its
decision on the charges is a denial of reasonable opportunity to the employee
to prove his innocence and is a breach of the principles of natural justice.”
Therefore, only on the ground of violation of principles of natural justice,
the order of punishment was quashed. The Tribunal, while considering the fact
that the punishment of stoppage of increment had already been implemented,
held that there was no need to pay the amount already recovered. The Tribunal
however directed that the first respondent will be entitled to service
benefits, promotion etc. and further went on to hold that if the punishment
had not been implemented, the first respondent would be entitled for pay
fixation prospectively. Aggrieved by this order of the Tribunal, the
Department is before this Court.
5. The main contention of the petitioner-Department is that
consequent on the 42nd amendment to the Constitution of India (that there is
no need for the issue of a second time court notice to the Accused Officer in
respect of the particular penalty to be imposed) and in the light of the
decision of the Supreme Court of India reported in AIR 1 994 SC 1074 (cited
supra), the Government in G.O.Ms.No.148, Personnel and Administrative Reforms
(N) Department, dated 15.3.1996 have amended the Rule 10(b) of Tamil Nadu
Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, deleting the
provision for issue of show cause notice to the accused-officer mentioning the
particular penalty to be imposed. The abovesaid amendment came into force
only on 15 th March, 1996. It is further contended by the petitioner that as
per the existing procedure in vogue (vide Rule 10(b) of the said TNCS ( DPT)
Rules) at the time of passing final order on 9.9.1995, the Head of the
Department, i.e. the Director of Rural Development came to a provisional
conclusion to reduce the time scale of pay to the minimum for a period of five
years on the respondent as a measure of punishment for the proved charges and
issued show cause notice on 16.12.1994 to the respondent with a copy of the
report of the Tribunal for disciplinary proceedings calling for his further
representation within 15 days from the date of receipt of the show cause
notice. After receipt of further representation dated 7.4.1995 from the
individual and after taking into account the representation, the Director of
Rural Development passed final orders on 9.9.1995 awarding punishment on the
individual. It is therefore contended that the Government had come to a
provisional conclusion with regard to the penalty to be imposed and
consequently the delinquent was supplied with a copy of the report of the
enquiry-Tribunal and was called upon to show cause within a reasonable time
against the penalty proposed to be inflicted. The Department therefore
contended that there was no need for issuance of second show cause notice and
therefore, there was no violation of principles of natural justice as alleged.
The amendment to the G.O. was made pursuant to the decision of the Supreme
Court referred to above and therefore, it was contended that on the proved
charges, the order of the disciplinary authority imposing punishment is well
within it’s powers and therefore, the order of the Tribunal requires to be set
aside.
6. It is stated in the show cause notice dated 16.12.1994 as follows:
“The Director of Rural Development, Madras after careful and
independent examination of the Report of the Tribunal, for Disciplinary
Proceedings, Madras accept the findings of the Tribunal and has come to the
provisional conclusion, to reduce the time-scale of pay to the minimum for a
period of FIVE YEARS on Thiru.A.Perianayagam, formerly Rural Welfare Officer
Grade II, Thandrampet Panchayat Union, now as a measure of punishment for the
above proved charge.” (emphasis supplied)
7. The contention of the first respondent is that before the show
cause notice dated 16.12.1994 is issued, the disciplinary authority has
already come to the conclusion that the findings of the Tribunal for
disciplinary proceedings, are liable to be accepted and also comes to the
provisional conclusion to reduce the time scale of pay to minimum period of
five years on the ground that it is a measure of punishment for the above
proved charge. The contention of the counsel for the first respondent is that
the copy of the report of the Tribunal for disciplinary proceedings, should
have been furnished earlier and an opportunity should have been given to the
first respondent to submit his statement of defence. On the contrary, by the
show cause notice proceedings, the authority has already come to the
conclusion that the charges are proved and the findings of the Tribunal for
disciplinary proceedings, have been accepted. Therefore, the show cause
notice proceedings is only an empty formality and that the
petitionerDepartment has pre-judged the issue and came to the conclusion about
the guilt of the first respondent. According to the counsel for the first
respondent, non-furnishing of the enquiry report before issuance of the show
cause notice is fatal to the disciplinary proceedings and the conclusion
arrived at by the authority in the show cause notice clearly shows that they
have already pre-judged the issue and therefore, it is contrary to the G.O.
and also to that of the ruling of the Apex Court referred to above.
8. We have given our anxious consideration to the contentions of the
parties on merits.
9. We find that the show cause notice dated 16.12.1994 has been
issued by the petitioner herein, who has simply accepted the findings of the
enquiry-Tribunal that the charges are proved and the punishment has to be
given. It is therefore apparent that the authority has not applied his mind
independently to the various charges alleged against the first respondent.
However, the same has been accepted without any appreciation of material
evidence and the order of punishment has been recommended by the disciplinary
authority following the report of the enquiry officer.
10. We find that the enquiring authority in this case is the Tribunal
which has given it’s enquiry report. The delinquent employee did not receive
the copy of the enquiring authority’s report before the disciplinary authority
arrived at the conclusion with regard to the guilt or innocence of the
employee on the charges levelled against him. Therefore, the right of the
employee to defend his case before the disciplinary authority, is taken away
as the issue has been pre-judged. This will amount to denial of a reasonable
opportunity for the delinquent to prove his innocence and it will be breach of
principles of natural justice.
11. In this case, before issuing show cause notice dated 16.12.1994
whereunder the disciplinary authority has already come to the conclusion that
the findings of the Tribunal for disciplinary proceedings are accepted on
proved charges, there was no opportunity for the first respondent to rebut the
charges. We have no hesitation to hold that the petitioner-Department has
pre-judged the issue. It is no doubt true that second show cause notice is
not contemplated after the 42nd amendment to the Constitution. The question
of issuing second show cause notice does not arise. In this case, the
disciplinary authority has come to a conclusion about the guilt of the first
respondent even at the time of issuance of the show cause notice dated
16.12.1994 and along with the said show cause notice, the copy of the enquiry
report has been submitted. So, there is a clear case of prejudice on account
of violation of principles of natural justice. It is also a case of
arbitrariness on the part of the authority. We have no hesitation to hold
that there is violation of the principles laid down in the judgment of the
Apex Court referred to above.
12. Therefore, we have no hesitation to accept the contention of the
first respondent that the disciplinary authority has pre-judged the issue even
at the stage of issuance of show cause notice and at that point of time only,
the enquiry report of the Tribunal for disciplinary proceedings, was
furnished. Therefore, there is miscarriage of justice on account of violation
of principles of natural justice and consequently, the disciplinary
proceedings are to be set aside.
13. In the facts and circumstances of the case, we find no reason to
interfere with the order of the Tribunal which has modified the order of
punishment to the effect that if the punishment has not been implemented, the
first respondent would be entitled for pay fixation prospectively. The writ
petition is dismissed. No costs.
cs
To
1. The Director of Rural Development,
Panagal Maaligai,
Chennai-15.
2. The Registrar,
Tamil Nadu Administrative Tribunal,
Chennai.