IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09-04-2010
CORAM :
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
W.P. No. 37504 of 2006
V. Baskaran .. Petitioner
Versus
1. The Director of Collegiate Education
Chennai 6
2. The Dy. Director of Collegiate Education
Chennai 6 .. Respondents
O.A. No. 1712 of 1998 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, praying to call for the records on the file of the second respondent herein in his Pro.Na.Ka.No.14532/95 dated 08.10.1997 and the records on the file of the first respondent in his Pro.Mu.Mu.No.72033/P3/97 dated 28.01.1998 and quash the same.
For Petitioner : Mr. M. Ravi
For Respondent : Mrs. Lita Srinivasan
Government Advocate
ORDER
A charge memo dated 21.01.1997 was issued to the petitioner under Rule 17 (b) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules and it was served on him on 06.02.1997. On receipt of the charge memo, the petitioner has submitted his written explanation on 19.02.1997 denying the charges. In and by the explanation dated 19.02.1997, the petitioner also sought for copies of certain documents. However, even before the copies of the documents sought for by him were furnished, an enquiry officer was appointed on 12.03.1997 and on 13.03.1997, the petitioner was permitted to peruse the records. Thereafter, the petitioner submitted another representation dated 27.03.1997 seeking further documents, but the same was not furnished to him. The enquiry officer conducted enquiry on 22.04.1997 in which three witnesses were examined. Ultimately, on 30.04.1997, the enquiry officer has submitted his report holding that the charge against the petitioner is not proved. Thereafter, the first respondent in his proceedings dated 19.05.1997 requested the enquiry officer to summon the witnesses mentioned therein to appear once again for an oral enquiry and thereafter to submit his report. Therefore, oral enquiry was again conducted on 06.06.1997 and the enquiry officer submitted his report on 27.06.1997. In the second report also, the enquiry officer has stated that the charges are not proved. Thereafter, the first respondent, by proceedings dated 25.11.1997 called for additional/further explanation from the petitioner only with reference to the report of the enquiry officer dated 27.06.1997. On 12.08.1997, the petitioner also submitted his written explanation requesting the disciplinary authority to accept the findings of the enquiry, but subsequently, the second respondent, in his proceedings dated 08.10.1997 held that the charge against the petitioner is proved and imposed the punishment of stoppage of increment for a period of one year without cumulative effect. Aggrieved by the same, the petitoner has filed an appeal before the first respondent, but the same was rejected on 28.01.1998. Aggrieved by the aforesaid orders, the petitioner has filed the Original Application before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 37504 of 2006.
2. The respondents have filed reply affidavit contending that the petitioner was examined before the enquiry officer and after complying with the formalities, the enquiry officer submitted his report on 30.04.1997 holding that the charge against the petitioner are not proved. On receipt of the report, the disciplinary authority requested the enquiry officer to summon three witnesses and examine them and thereafter submit his report. Accordingly, the enquiry officer again conducted enquiry on 06.06.1997 and submitted his report on 27.06.1997 once again holding that the charges are not proved. On receipt of the report of the enquiry officer, the disciplinary authority issued a notice dated 25.07.1997 calling upon the petitioner to submit his additional explanation, which was also submitted by him on 12.08.1997 in which he had specifically pleaded the disciplinary authority to accept the report of the enquiry officer and to exonerate him. Thereafter, the appellate authority, taking into consideration the further explanation made by the petitioner, reports of the enquiry officer and other connected materials has passed the order of punishment of stoppage of increment for a period of one year without cumulative effect. According to the learned Government Advocate, the petitioner was given all fair opportunity before conducting the enquiry as contemplated under Rule 17 (b). Inasmuch as the disciplinary authority is empowered to differ with the findings of the enquiry officer, the impugned order of punishment passed by the disciplinary authority holding that the charge against the petitioner is proved, notwithstanding the findings of the enquiry officer, is sustainable in law. The petitioner has also filed appeal before the appellate authority questioning the correctness of the order of punishment and the same was also confirmed by the appellate authority by assigning valid reasons. Therefore, the orders passed by the respondents are correct and legal.
3. Heard both sides. The short point for consideration in this writ petition is whether the punishment imposed by the disciplinary authority, which was confirmed by the appellate authority, is valid and legal.
4. The petitioner was charged for certain delinquency by the second respondent. In order to prove the charge, an enquiry officer was appointed, who has conducted enquiry and submitted his report dated 30.04.1997 holding that the charge against the petitioner is not proved. On receipt of the report of the enquiry officer, the disciplinary authority requested the enquiry officer to conduct a further enquiry by summoning certain witnesses. Accordingly, the enquiry officer conducted enquiry once again on 06.06.1997 in which the petitioner has also participated and submitted his second report on 27.06.1997 holding that the charge against the petitioner is not proved. On receipt of the second report, the disciplinary authority issued a notice dated 25.07.1997 calling upon the petitioner to submit his further explanation, but without disclosing his intention that he is disagreeing with the views of the enquiry officer and to take a different stand. The notice dated 25.07.1997 of the disciplinary authority reads as follows:-
“22/04/97 kw;Wk; 6/6/97 Mfpa ,U njjpfspy; brd;id?2 brd;id kz;ly fy;Y}hp fy;tp ,iz ,af;Fdh; mth;fshy; elj;jg;gl;l tha;bkhHp tprhuiz mwpf;ifapd; efy; mDg;gyhfpwJ/
njh;t[epiy cjtpahsh; jpU/ bt/gh!;fud; vd;ghh; jdJ TLjy; jw;fhg;g[ thf;FK:yj;ij ,r;bray;Kiwfs; fpilf;fg;bgw;w 15 ehl;fSf;Fs; jtwhJ mDg;g[khW nfl;Lf;bfhs;sg;gLfpwhh;/
5. By this letter dated 25.07.1997, the disciplinary authority merely sought for further explanation from the petitioner and there is no reference that the disciplinary authority is disagreeing with the findings of the enquiry officer.
6. The learned counsel for the petitioner submits that had the disciplinary authority revealed or disclosed his intention to disagree with the findings of the enquiry officer in the letter dated 25.07.1997, the petitioner would have submitted his explanation in such a manner disproving the charges levelled against him by referring to the statement of the witnesses. Even in the further representation dated 12.08.1997, the petitioner had categorically pointed out that he has not committed any irregularity and therefore he be exonerated of the charge by accepting the report of the enquiry officer. After receipt of the aforesaid further representation dated 12.08.1997, the disciplinary authority straightaway imposed the punishment by differing with the findings of the enquiry officer and therefore the punishment is illegal. No doubt, in the order of punishment dated 08.10.1997, the disciplinary authority merely referred to the further representation given by the petitioner on 12.08.1997, but in so far as the order of punishment is concerned, he merely extracted the charges, evidence let in by the witnesses and lastly in one line, he had concluded that the charge is proved. Therefore, according to the learned counsel for the petitioner, the impugned order is a non-speaking order and it is liable to be set aside. In this context, it is necessary to refer to the order dated 08.10.1997 of the second respondent, wherein it was stated as follows:-
“vdnt nkw;Fwpj;j NH;epiyapy;. brd;id ? 5. khepyf; fy;Y}hpapd; Kd;dhs; cjtpahsUk; jw;nghJ br’;fy;gl;L. ,uh/nt/muR fiyf; fy;Y}hpapy; gzpahw;wp tUgtUkhd cjtpahsh; jpU/ bt/ gh!;fud; vd;ghh; kPjhd Fw;wr;rhl;L epU:gzk; MfpwJ/ ifa{l;L bgWtJ fLikahd Fw;wk;/ MapDk; jhuhs kdg;ghd;ika[ld; fUjg;gl;L mtuJ mLj;j Cjpa cah;tpid bjhlh; tpistpd;wp xU Mz;L epWj;jp itj;J Miz tH’;fyhfpwJ/ (Stoppage of increment for a period of one year without cumulative effect) md;dhh; mDgtpj;j tpLg;g[f;fhyk; eP’;fyhf ,t; Xuhz;L gzpf;fhyk; fzf;fplg;gl ntz;Lk; vdj; bjhptpf;fyhfpwJ/
7. From a reading of the order dated 08.10.1997 of the disciplinary authority imposing punishment, it is clear that the disciplinary authority, without assigning any reason has disagreed with the views of the enquiry officer. No where in the order of punishment it was mentioned by the disciplinary authority that the further representation dated 12.08.1997 of the petitioner was considered. Therefore, the impugned order passed by the second respondent, without expressing his disagreement with the findings of the enquiry officer to the petitioner, is legally not sustainable. In this connection, it is necessary to refer to the decision of the Division Bench of this Court reported in (V. Arulkumar vs. Housing and Urban Development Corporation Ltd (Hudco), rep.by its Board of Directors/Appellate Authority and others) 2009 3 CTC 388 for the proposition that when the disciplinary authority wants to disagree with the findings of the enquiry officer, in respect of the charges held to be not proved by the enquiry officer, giving further notice to the delinquent asking him to submit further explanation in respect of those charges, in which he was exonerated, is certainly a continuation of principles of natural justice and it is not merely a second opportunity. The Division Bench further held that giving opportunity is not only in compliance of principles of natural justice, but it is a mandatory requirement. In Para Nos. 23 and 24 it was held as follows:-
23. It is true that there are cases where non furnishing of inquiry Officer’s report may not vitiate the disciplinary proceedings. There maybe cases where the regulation governing the service conditions of an employee may not stipulate providing of such inquiry report. There may alsobe cases where all particulars contained in the inquiry report were very much available with the delinquent officer and therefore, the furnishing ofcopies would only become an empty formality. It has been the consistent view of the Hon’ble Apex Cxourt that the principles of natural justice cannot be applied in a strait-jacket formula and the same is flexible based on the circumstances, especially in the circumstances that in recent time, the principles has undergone a sea of change.
24. The view that non giving of an opportunity of hearing, while differing with the finding of the Inquiry Officer, is a flagrant violation of the principles of natural justice as has been laid down by the Supreme Court in P.D. Agarwal vs. State Bank of India and others, 2006 (8) SCC 776. In almost similar facts to that of the present facts in issue, wherein out of the charges levelled, the Disciplinary Authority wanted to differ in respect of a charge, which was exonerated by the Inquiry Officer and inspite of it, the Disciplinary Authority has given punishment in respect of that charge also and when the Bank raised a similar contention that no prejudice has been caused by omission on the part of the Disciplinary Authority of giving the delinquent an opportunity of hearing…..
8. As per the above decision of the Division Bench, it is clear that the Disciplinary authority should give specific notice stating that he intends to disagree with the findings of the enquiry officer. Thereafter, he should seek for further explanation from the delinquent officer. If necessary, the delinquent has also to be given a personal hearing. Only thereafter, an order can be passed taking into consideration the further representation also. In this case, this has not been followed by the disciplinary authority. Therefore, the order passed by the disciplinary authority, without mandatory notice intimating the delinquent that he is disagreeing with the findings of the enquiry officer, is per se illegal.
9. Further, in the appeal filed by the petitioner, a specific ground has been raised by him that the disciplinary authority has not given notice with regard to the disagreement with the findings of the enquiry officer’s report and no reasons at all was given for such disagreement, but the appellate authority has not at all taken into consideration such a ground raised by the petitioner and simply rejected the appeal confirming the order of the disciplinary authority stating that there is no procedural irregularity in respect of the conduct of the enquiry. In other words, the appellate authority has not given any reasons for confirming the order of the disciplinary authority and it has been passed without application of mind. In this connection, the decision of the Honourable Supreme Court reported in (Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney) (2009) 4 SCC 240 is relevant to be looked into wherein the Honourable Supreme Court has held that an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. The appellate order should disclose application of mind. Whether there was application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. In Para No.5 and 8, it was held as follows:-
5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority.
8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.
10. Therefore, in the light of the decision of the Honourable Supreme Court, I hold that the appellate authority has passed the order of confirmation without application of mind and without assigning any reasons, hence, it is also liable to be set aside.
11. It is now brought to the notice of this Court that the petitioner has retired from service during the year 2009. Normally, when the orders of the respondents are set aside on a technical ground like non-speaking order, it is but proper for the Courts to remand the matter back to the authorities for fresh consideration. But, in this case, the enquiry officer has held that the single charge levelled against the petitioner was not proved, however, the second respondent passed the impugned order of punishment on 08.10.1997, which was confirmed by the appellate authority on dated 28.01.1998 and the petitioner also retired from service during the year 2009, therefore, at this stage, I am not inclined to remand the matter back to the respondents. Moreover, a minor punishment of stoppage of increment for one year without cumulative alone was imposed on the petitioner. In this context, in identical case, this Court in the judgment rendered on 28.01.2009 in WP No. 29705 of 2006 held in para-6 as follows:-
“6. Normally, when an order is set aside on a technical ground like this, the proper course would be to remit the case back to the authorities for fresh disposal. But I do not propose to adopt the said course in the instant case for the reason that the O.A. Was filed in the year 1997 and the same is disposed of only today that is after about 12 years. Going by the triviality of the charge and other circumstances, at this length of time, if the matter is remitted back to the respondent for passing fresh order, it will surely cause prejudice to the petitioner. The Honourable Supreme Court has held in number of judgments in categorical terms that disciplinary proceedings should not be delayed unnecessarily. Similarly, on the ground of inordinate delay, the disciplinary proceedings have been quashed by the Hon’ble Supreme Court and by this Court. If the proceedings in the instant case are remitted back to the respondent for disposal, at this length of time, surely, it would run counter to the principles laid down by the Hon’ble Supreme Court stated above.”
12. In the light of the above discussions, the impugned orders of the disciplinary authority as well as the appellate authority are set aside. The writ petition is allowed. No costs.
09-04-2010
rsh
Index : Yes / No
Internet : Yes / No
To
1. The Director of Collegiate Education
Chennai 6
2. The Dy. Director of Collegiate Education
Chennai 6
B. RAJENDRAN, J
W.P. No. 37504 of 2006
09-04-2010
