L. Anand v. The Secretary to Government, Transport Department

(d)The explanation submitted by the petitioner was notfound acceptable, hence an enquiry was conducted. The EnquiryOfficer found that the charges are proved. Thereafter a showcause notice was issued on 27.4.2004 with regard to the proposedpunishment of reduction in basic pay at Rs.12,000/- from thepresent basic pay of Rs.15,750/- for three years. Petitionersubmitted his reply on 22.6.2004. Copy of the enquiry report wasalso enclosed with the said notice. Third respondent withoutconsidering the reply imposed the punishment of reduction in basicpay by fixing the basic pay at Rs.12,000/- from the present basicpay of Rs.15,750/- for one year by order dated 7.3.2005.(e)Aggrieved by the said order of punishment, petitionerpreferred appeal before the second respondent on 28.3.2005. Thesaid appeal was rejected by a non-speaking order and the same wascommunicated by the third respondent on 20.7.2006. Thereafterpetitioner filed a review petition before the first respondent on14.8.2006, which was also rejected on the ground that after expiryof six months review petition cannot be entertained. The saiddecision of the first respondent was communicated by the thirdrespondent on 10.11.2006.(f)The said orders of the respondents are challenged inthis writ petition on the ground that four officials were involvedin the same occurrence and the highest Officer being the ManagingDirector, against whom disciplinary action can be taken only bythe Government, the charge framed by the Corporation is withoutjurisdiction; that the petitioner having not violated any of theGovernment instructions and as there is no requirement to getprior approval of the Finance Committee before depositing theaward amount, the charge itself is baseless; that taking note ofthe urgency in satisfying the decree amount, when executionpetition was filed, the amount was deposited and subsequentlysought for ratification from the Finance Committee and the saidprocedure was followed only to avoid attachment of the Corporationproperties in execution proceedings; that the findings of theEnquiry Officer is baseless and therefore the order passed on thebasis of the said Enquiry Officer's findings cannot be sustained;that the procedure followed by the third respondent in issuingfinal show cause notice before accepting the findings of theEnquiry Officer is in violation of the principles of naturaljustice; that the impugned punishment was given without recordingthe findings of guilt by the disciplinary authority and as suchthe order of punishment is without any application of mind; thatfor the same allegation Chief Accounts Officer was proceeded andin the appeal the said punishment was modified for six monthsinstead of one year; that the Appellate Authority has not passedany speaking order; that the review petition having been filed on https://hcservices.ecourts.gov.in/hcservices/

14.8.2006, after communication of the order passed in appeal on21.7.2006, the same is within the time and the Government oughtnot to have rejected the review on the ground of delay; and that,no motive is attributed against the petitioner and the petitionerhaving acted in good faith to protect the interest of theCorporation, no misconduct warranting disciplinary action can beattributed against the petitioner.3.The third respondent filed counter affidavit statingthat the petitioner, while working as General Manager in theerstwhile Annai Sathya Transport Corporation, had remitted theamount to satisfy the award amount without following theinstructions of the Government. Petitioner being a member of thesub-Committee, should have followed the instructions of theGovernment and as per the instructions issued by the Government inletter dated 5.7.2002 prior approval of the FinanceCommittee/Board should have been obtained for making payment. Asthe petitioner had not obtained prior approval, the petitioner wasissued with charge memo and after conducting enquiry, punishmentof reduction in basic pay for one year was imposed, which was alsoconfirmed in appeal. The review petition having been filed afterthe prescribed time limit, the same was rejected as time barred.There is no procedural violation in passing the order ofpunishment. Petitioner having violated the procedures is notentitled to challenge the order of punishment.4.Heard the learned counsel for the petitioner as well asthe respondents.5.From the above pleadings, the following points arise forconsideration in this writ petition:(i)Whether the charges framed against the petitioner by memodated 21.3.2003 are maintainable ?(ii)Whether the Enquiry Officer is justified in giving a findingwith regard to the proof of charges ?(iii) Whether the disciplinary authority is justified inaccepting the Enquiry Officer's report before serving the same tothe petitioner and getting his remarks about the findings ?(iv)Whether the Disciplinary Authority is bound to record hisown reasons with regard to the findings of guilt whileimposing punishment ?(v)Whether the appellate authority is bound to give reasonswhile rejecting the appeal filed by the petitioner ?(vi)Whether the Government is justified in dismissing the review https://hcservices.ecourts.gov.in/hcservices/ petition on the ground of delay ?Issue No.(i) Whether the charges framed against the petitioner bymemo dated 21.3.2003 are maintainable ?6.The charges framed against the petitioner by memo dated21.3.2003 read as follows:"1.Before taking a decision, you haveto follow the instructions, if any availableat the time of taking a decision. You are oneof the Committee members suggested to settlethe award amount without following theinstructions of the Government. It shows yourgross negligence on your part resulting ininconvenience to the Corporation which is amisconduct under rules 28(1) of the ConductRules of the Common Service Rules of thisCorporation.2.As per the instructions of theGovernment letter dated 5.7.2002 priorapproval of the Finance Committee/Board shouldbe obtained for making payment. But you havenot followed the above instructions. Henceyou have breached the above instructions,which is a misconduct under rule 28(r) of theConduct Rules of the Common Service Rules ofthis Corporation." 7.In the said charge memo it is stated by the thirdrespondent that legal opinions have been obtained from theStanding Counsels of the Tamil Nadu State Transport Corporation(Salem Division-II) at Krishnagiri and High Court, Madras and boththe Advocates have opined "not fit case for appeal". Hence it wasdecided to remit the award amount with interest and cost inM.C.O.P.Nos.805 of 2000, 1085 of 2000 and 263 of 2001 on the fileof Additional District Judge Court-II, Krishnagiri, for a sum ofRs.4,08,000/-, Rs.4,00,000/-; and Rs.7,34,706/- with 9% interestfrom 21.11.2001, 25.1.2002 and 15.4.2002 respectively and cost ofRs.14,354/- in M.C.O.P.No.805 of 2000 and Rs.21,083/- inM.C.O.P.No.263 of 2001 was ordered to be paid and place thesubject in the ensuing Finance Committee/Board for approval. Itis further stated in the charge memo that in the meantime theMotor Accident Claims Tribunal passed an order in the executionpetition filed by the claimants to attach the Corporationproperties. In view of the same, the subject was discussed by thesub-Committee and after discussion it was decided to settle theaward amounts and get ratification from the FinanceCommittee/Board later. Based on the said decision taken in the https://hcservices.ecourts.gov.in/hcservices/ sub-committee, award amount with interest and cost have beenremitted in the Tribunal on 19.11.2002, 4.12.2002 and 11.12.2002.Similarly in M.C.O.P.No.37 of 1996, the Tribunal at Dharmapuripassed an award for a sum of Rs.4,55,000/- with interest at therate of 9% from 31.7.1995 till the date of settlement with cost ofRs.15,491.50. For the said award also legal opinion was obtainedfrom both the Counsels at Dharmapuri and High Court, Madras andboth the advocates have opined, "not fit case for appeal".However, the Committee has decided that appeal against the orderof the Tribunal may be filed before the High Court andratification may be obtained from the Finance Committee/Board,based on which an appeal was filed in time. In the meanwhile,the Tribunal in the execution proceedings ordered attachment ofthe Corporation property and therefore the sub-committee decidedto settle the matter to avoid the attachment and to getratification from the Finance Committee/Board. Based on the abovedecision award amount with interest and cost to the tune ofRs.7,44,368/- was deposited on 20.11.2004 in the Motor AccidentClaims Tribunal, Dharmapuri, with further prayer to retain theamount in the Court account till further directions are obtainedfrom the High Court, Madras.8.The above four cases have been placed before the FinanceCommittee meeting held on 3.12.2002 and in the Board meeting heldon 26.12.2002, for ratification. The Board in ResolutionNo.113/2002-2003 resolved not to ratify the action of the ManagingDirector in having deposited the amount without prior approval ofthe Finance Committee/Board and further resolved to prefer appealin all the four cases, based on which appeals have been filedbefore the High Court, Madras. It is stated in the charge memothat on the basis of the above decision of the Board not to ratifythe action of the petitioner in depositing the amount withoutprior approval, the said charges were framed.9.The petitioner submitted his explanation to the thirdrespondent on 10.4.2003 stating that in all the four cases ordershave been passed in execution petitions and therefore thepetitioner was left with no option except to deposit the awardamount and in all cases the Legal Advisors gave opinion as, "notfit case for appeal" and only in one case appeal was filed. Inthe meanwhile orders were passed in the execution proceedings.10.Petitioner in his explanation further stated that onlyto avoid attachment of the Corporation properties, with bona fideintention the sub-Committee decided to deposit the amount so as tosafeguard the image of the Corporation, failing which theattachment of the Corporation's properties would have be giveneffect, which will spoil the image of the Corporation through TVnews channels and Newspapers. It is further stated that as a sub- https://hcservices.ecourts.gov.in/hcservices/ Committee member, petitioner acted for the best interest of theCorporation and therefore the charges framed may be dropped.Petitioner further stated, no other dereliction of duty was foundagainst him or any charge memo was issued to him at any point oftime. 11.Order XXI Rule 1 CPC states that all money payable undera decree shall be paid to the decree-holder by deposit into theCourt or out of Court to the decree-holder or otherwise and if theamount is paid or deposited interest, if any, shall cease to runfrom the date of such payment/deposit. Thus, the petitioner onlysafeguarded the interest of the Corporation. It is alsoworthwhile to notice in this case that the respondents haveattributed no motive against the petitioner for depositing theaward amount in Courts.(a)In the decision reported in (1999) 7 SCC 409 (ZunjarraoBhikaji Nagarkar v. Union of India), the Supreme Court consideredsimilar issue and held that negligence in exercising quasi-judicial power by mere carelessness or inadvertence or omission isnot sufficient to initiate proceedings under misconduct. Unlessthere is a culpable negligence or ill-motive, no charge could beframed. In paragraphs 43 and 44, the Supreme Court held asfollows:"43.If every error of law were toconstitute a charge of misconduct, it wouldimpinge upon the independent functioning ofquasi-judicial officers like the appellant.Since in sum and substance misconduct issought to be inferred by the appellant havingcommitted an error of law, the charge-sheet onthe face of it does not proceed on any legalpremise rendering it liable to be quashed. Inother words, to maintain any charge-sheetagainst a quasi-judicial authority somethingmore has to be alleged than a mere mistake oflaw, e.g., in the nature of some extraneousconsideration influencing the quasi-judicialorder. Since nothing of the sort is allegedherein the impugned charge-sheet is renderedillegal. The charge sheet, if sustained, willthus impinge upon the confidence andindependent functioning of a quasi-judicialauthority. The entire system ofadministrative adjudication whereunder quasi-judicial powers are conferred onadministrative authorities, would fall intodisrepute if officers performing suchfunctions are inhibited in performing their https://hcservices.ecourts.gov.in/hcservices/ functions without fear or favour because ofthe constant threat of disciplinaryproceedings.44.Considering whole aspects of thematter, we are of the view that it was not acase for initiation of any disciplinaryproceedings against the appellant. The chargeof misconduct against him was not proper. Ithas to be quashed."(b)In the decision reported in 2007 (3) LLN 106 = (2007) 4SCC 566 (Inspector Prem Chand v. Government of N.C.J. of Delhi)following the earlier decisions, the Supreme Court held that theacts of negligence, error of judgment or innocent mistake, do notconstitute misconduct. In the above case, the appellant/PoliceOfficer failed to seize the tainted money on receipt of complaintof alleged demand of bribe by an Inspector (Malairiya).Department initiated disciplinary proceeding on the charge that hehad not seized the tainted money, which could be an importantpiece of evidence in criminal proceeding. The Supreme Court heldthat the Police Inspector could not be said to have committed anymisconduct merely because in the opinion of the higher authoritieshe ought to have seized the tainted money. The Supreme Court inparagraphs 10 to 12 dealt with the term misconduct, which reads asfollows:"10. In State of Punjab v. Ram Singh, Ex-Constable (1999 (2) LLN 419) it was stated, inpara.5, at page 422: “Misconduct has been defined in Black’sLaw Dictionary , 6th Edn. at p.999, thus:‘A transgression of some establishedand definite rule of action, a forbiddenact, a dereliction from duty, unlawfulbehavior, willful in character, improperor wrong behavior; its synonyms aremisdemeanor, misdeed, misbehavior,delinquency, impropriety, mismanagement,offense, but not negligence orcarelessness.’ Misconduct in office has been defined as: ‘Any unlawful behavior by a publicofficer in relation to the duties of hisoffice, willful in character. Term embracesacts which the office-holder had no right toperform, acts performed improperly, andfailure to act in the face of an affirmativeduty to act.’ ” https://hcservices.ecourts.gov.in/hcservices/

11. In P.Ramanatha Aiyar’s Law Lexicon,3rd Edn., at p.3027, the term “misconduct” hasbeen defined as under: “The term ‘misconduct’ implies awrongful intention, and not a mere errorof judgment. Misconduct is not necessarily thesame thing as conduct involving moralturpitude. The word ‘misconduct’ is a relativeterm, and has to be construed withreference to the subject-matter and thecontext wherein the term occurs, havingregard to the scope of the Act or statutewhich is being construed. ‘Misconduct’literally means wrong conduct or improperconduct.” (See also Bharat Petroleum Corpn. Ltd. v. T.K.Raju (2006 (2) LLN 54)) 12. It is not in dispute that adisciplinary proceeding was initiated againstthe appellant in terms of the provisions ofthe Delhi Police (Punishment and Appeal)Rules, 1980. It was, therefore, necessary forthe disciplinary authority to arrive at afinding of fact that the appellant was guiltyof an unlawful behaviour in relation todischarge of his duties in service, which waswilful in character. No such finding wasarrived at. An error of judgment, as noticedhereinbefore, per se is not a misconduct. Anegligence simpliciter also would not be amisconduct. In Union of India v. J.Ahmed((1979) 2 SCC 286) whereupon Mr Sharan himselfhas placed reliance, this Court held sostating: “Code of conduct as set out in theConduct Rules clearly indicates theconduct expected of a member of theservice. It would follow that conductwhich is blameworthy for the governmentservant in the context of Conduct Ruleswould be misconduct. If a servantconducts himself in a way inconsistentwith due and faithful discharge of hisduty in service, it is misconduct (seePierce v. Foster 17 Q.B.536, 542). A https://hcservices.ecourts.gov.in/hcservices/ disregard of an essential condition ofthe contract of service may constitutemisconduct [see Laws v. London Chronicle(Indicator Newspapers (1959(1)W.L.R.698)). This view was adopted inShardaprasad Onkarprasad Tiwari v.Divisional Supdt., Central Rly., NagpurDivision, Nagpur (61 B.L.R. 1569) andSatubha K. Vaghela v. Moosa Raza (10G.L.R. 23). The High Court has noted thedefinition of misconduct in Stroud’sJudicial Dictionary which runs as under: ‘Misconduct means, misconductarising from ill motive; acts ofnegligence, errors of judgment, orinnocent mistake, do not constitute suchmisconduct ’.”(emphasis supplied) (c)A Division Bench of this Court in the decision reportedin 1999 (2) LW 174 (A.M.Sankaran v. The Registrar, High Court,Madras), quashed an order of compulsory retirement passed againstthe judicial officer for destroying the seized spirit withoutexamining or recording any evidence regarding the inflamablenature of the spirit. This court held that the said order havingbeen passed during discharge of the function as judicial officer,framing such charge without any allegation or recklessness orabuse of power, cannot be sustained.(d)The above said decisions were followed by me in thedecision reported in (2008) 3 MLJ 766 (S.Muthuramu v. State ofTamil Nadu) and quashed the disciplinary proceeding initiatedagainst an Additional Special Deputy Collector (Stamps).12.From the perusal of the charge memo and explanationsubmitted by the petitioner and on the basis of the materialsavailable in this case and applying the decisions referred aboveto the facts of this case, I am of the firm view that issue No.(i)has to be answered in favour of the petitioner.Issue No.(ii) Whether the Enquiry Officer is justified in giving afinding with regard to the proof of charges?13.On a perusal of the Enquiry Officer's report it is seenthat the explanation given by the petitioner on 11.4.2003 alone isrelied on. The plea of the petitioner that he has acted bonafidely and that only to avoid attachment of the Corporationproperties the award amounts were deposited, has not beenconsidered. The Enquiry Officer proceeded on the basis that the https://hcservices.ecourts.gov.in/hcservices/ petitioner has accepted the guilt and therefore gave a finding tothe effect that the charges are proved. The said finding givenby the Enquiry Officer is based on no evidence and therefore thesame is to be treated as perverse finding.14.How the Enquiry Officer shall conduct enquiry and hisimportance in disciplinary proceeding are clearly laid by theSupreme Court in several cases.(i)In the decision reported in 2009 (1) Supreme 438 :(2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank andOthers) it is held that departmental proceeding being a quasijudicial proceeding, the charges levelled against the delinquentofficer must be found to have been proved. Paragraphs 14 & 23 ofthe said judgment (in SCC) are extracted hereunder,"14. Indisputably, a departmentalproceeding is a quasi-judicial proceeding. Theenquiry officer performs a quasi-judicialfunction. The charges levelled against thedelinquent officer must be found to have beenproved. The enquiry officer has a duty toarrive at a finding upon taking intoconsideration the materials brought on recordby the parties. The purported evidencecollected during investigation by theinvestigating officer against all the accusedby itself could not be treated to be evidencein the disciplinary proceeding. No witness wasexamined to prove the said documents. Themanagement witnesses merely tendered thedocuments and did not prove the contentsthereof. Reliance, inter alia, was placed bythe enquiry officer on the FIR which could nothave been treated as evidence.23................. A decision must bearrived at on some evidence, which is legallyadmissible. The provisions of the Evidence Actmay not be applicable in a departmentalproceeding but the principles of naturaljustice are. As the report of the enquiryofficer was based on merely ipse dixit as alsosurmises and conjectures, the same could nothave been sustained. The inferences drawn bythe enquiry officer apparently were notsupported by any evidence. Suspicion, as iswell known, however high may be, can under no https://hcservices.ecourts.gov.in/hcservices/ circumstances be held to be a substitute forlegal proof."(Emphasis Supplied)(ii)In the decision reported in (2010) 2 SCC 772 (State ofU.P. v. Saroj Kumar Sinha) in paragraphs 28 to 30 it is held thus,"28.An inquiry officer acting in aquasi-judicial authority is in the position ofan independent adjudicator. He is notsupposed to be a representative of thedepartment /disciplinary authority/Government. His function is to examine theevidence presented by the Department, even inthe absence of the delinquent official to seeas to whether the unrebutted evidence issufficient to hold that the charges areproved. ..............29.Apart from the above, by virtue ofArticle 311(2) of the Constitution of Indiathe departmental enquiry had to be conductedin accordance with the rules of naturaljustice. It is a basic requirement of therules of natural justice that an employee begiven a reasonable opportunity of being heardin any proceedings which may culminate inpunishment being imposed on the employee.30.When a departmental enquiry isconducted against the government servant itcannot be treated as a casual exercise. Theenquiry proceedings also cannot be conductedwith a closed mind. The inquiry officer hasto be wholly unbiased. The rules of naturaljustice are required to be observed to ensurenot only that justice is done but ismanifestly seen to be done. The object ofrules of natural justice is to ensure that agovernment servant is treated fairly inproceedings which may culminate in impositionof punishment including dismissal/removal fromservice."(Emphasis Supplied)(iii) Same is the view taken by the Supreme Court in thedecision reported in AIR 1984 SC 505 : (1984) 1 SCC 1 (Glaxo https://hcservices.ecourts.gov.in/hcservices/ Laoratories (I) Ltd. v. Presiding Officer) and AIR 1984 SC 1361 :(1984) 3 SCC 316 (A.L.Kalra v. Project & Equipment Corporation).15.On the perusal of the Enquiry Officer's report and theconclusions arrived at and on comparison of the findings with theprinciples stated in the above referred decisions and as there isviolations in the decision making process, the Enquiry Officer'sfindings is declared as perverse as it is based on no evidence.Issue No.(iii) Whether the disciplinary authority is justified inaccepting the Enquiry Officer's report before serving the same tothe petitioner and getting his remarks about the findings ?16. In this case, it is not in dispute that the DisciplinaryAuthority is not the Enquiry Officer. Petitioner was issued withfinal show cause notice on 27.4.2004 to explain as to why theproposed punishment of reduction in pay for three years shall notbe imposed. Along with the said notice, Enquiry Officer's reportwas also enclosed. The said action of the third respondent makesit abundantly clear that the Enquiry Officer's finding has beenaccepted by the Disciplinary Authority even without serving a copyto the petitioner as well as his remarks about the report. Thusthere is violation of the principles of natural justice. 17.The importance of serving enquiry report and gettingremarks of the Delinquent Officer before its acceptance by theDisciplinary Authority was considered by the Constitution Bench ofthe Supreme Court in the decision reported in (1993) 4 SCC 727(Managing Director, ECIL v. B.Karunakar). In paragraphs 26 and 27the Constitution Bench held thus,"26. The reason why the right to receivethe report of the enquiry officer isconsidered an essential part of the reasonableopportunity at the first stage and also aprinciple of natural justice is that thefindings recorded by the enquiry officer forman important material before the disciplinaryauthority which along with the evidence istaken into consideration by it to come to itsconclusions. It is difficult to say inadvance, to what extent the said findingsincluding the punishment, if any, recommendedin the report would influence the disciplinaryauthority while drawing its conclusions. Thefindings further might have been recordedwithout considering the relevant evidence onrecord, or by misconstruing it or unsupportedby it. If such a finding is to be one of the https://hcservices.ecourts.gov.in/hcservices/ documents to be considered by the disciplinaryauthority, the principles of natural justicerequire that the employee should have a fairopportunity to meet, explain and controvert itbefore he is condemned. It is negation of thetenets of justice and a denial of fairopportunity to the employee to consider thefindings recorded by a third party like theenquiry officer without giving the employee anopportunity to reply to it. Although it istrue that the disciplinary authority issupposed to arrive at its own findings on thebasis of the evidence recorded in the inquiry,it is also equally true that the disciplinaryauthority takes into consideration thefindings recorded by the enquiry officer alongwith the evidence on record. In thecircumstances, the findings of the enquiryofficer do constitute an important materialbefore the disciplinary authority which islikely to influence its conclusions. If theenquiry officer were only to record theevidence and forward the same to thedisciplinary authority, that would notconstitute any additional material before thedisciplinary authority of which the delinquentemployee has no knowledge. However, when theenquiry officer goes further and records hisfindings, as stated above, which may or maynot be based on the evidence on record or arecontrary to the same or in ignorance of it,such findings are an additional materialunknown to the employee but are taken intoconsideration by the disciplinary authoritywhile arriving at its conclusions. Both thedictates of the reasonable opportunity as wellas the principles of natural justice,therefore, require that before thedisciplinary authority comes to its ownconclusions, the delinquent employee shouldhave an opportunity to reply to the enquiryofficer’s findings. The disciplinary authorityis then required to consider the evidence, thereport of the enquiry officer and therepresentation of the employee against it.27. It will thus be seen that where theenquiry officer is other than the disciplinaryauthority, the disciplinary proceedings breakinto two stages. The first stage ends when the https://hcservices.ecourts.gov.in/hcservices/ disciplinary authority arrives at itsconclusions on the basis of the evidence,enquiry officer’s report and the delinquentemployee’s reply to it. The second stagebegins when the disciplinary authority decidesto impose penalty on the basis of itsconclusions. If the disciplinary authoritydecides to drop the disciplinary proceedings,the second stage is not even reached. Theemployee’s right to receive the report isthus, a part of the reasonable opportunity ofdefending himself in the first stage of theinquiry. If this right is denied to him, he isin effect denied the right to defend himselfand to prove his innocence in the disciplinaryproceedings."(Emphasis Supplied)18.The non-communication of the enquiry report, before itwas accepted by the third respondent, prejudice the rights of thepetitioner. If the petitioner was served with the enquiry report,he could have pointed out that the Enquiry Officer's report isbased on no evidence and about the non-consideration of the factof absence of motive in depositing the award amount. It is wellsettled in law that if the employee is able to establish theprejudice due to the non-serving of enquiry report before it wasaccepted by the disciplinary authority, the same would be inviolation of the principles of natural justice. It is the case ofthe petitioner that only one witness was examined by the EnquiryOfficer viz., P.Kannaiyan, who was not examined in his presenceand not even the copy of his statement was furnished to thepetitioner and hence he could not cross examine the said witness.All these illegalities could have been pointed out to the thirdrespondent before accepting the enquiry report.19.Thus, issue No.(iii) is decided in favour of thepetitioner holding that the third respondent is not justified inaccepting the Enquiry Officer's report before getting remarks fromthe petitioner.Issue No.(iv) Whether the Disciplinary Authority is bound torecord his own reasons with regard to the findings of guilt whileimposing punishment ?20.In the reply to the show cause notice the petitionerpointed out that the amounts were deposited on compelling reasonswithout any motive and only to safeguard the interest of theCorporation, however, the same was not considered by the EnquiryOfficer and therefore the Enquiry Officer's findings is perverse. https://hcservices.ecourts.gov.in/hcservices/ The third respondent imposed the punishment of reduction in thebasic pay of the petitioner for one year based on the saiderroneous findings without independently applying his mind.21.The Common Service Rules Chapter V, Rule 6, sub-rule(14) reads as follows,"The authority competent to impose thepenalty shall, if it is not the InquiringAuthority, consider the report of inquiry andrecord its findings on each charge."Thus, there is mandatory requirement on the part of the thirdrespondent to independently apply his mind and record his ownfindings on the basis of which the charges are proved.22.A bare reading of the order of the third respondentreveals that the third respondent except narrating the framing ofcharges, conduct of enquiry, issuing of show cause notice and thereceipt of reply from the petitioner, has not chosen to state asto how the charges levelled against the petitioner are proved,whether the findings of the Enquiry Officer is based on acceptableevidence, whether non-serving of Enquiry Officer's report beforeit was accepted and issuing of show cause notice are in violationof the principles of natural justice. The third respondent in thepunishment order dated 17.2.2004 merely stated that theexplanation submitted is neither satisfactory nor acceptable,however, on humanitarian grounds, provisional penalty is reducedby fixing the basic pay of the petitioner at Rs.12,000/- from thepresent basic pay of Rs.15,735/- for one year, in the time scaleof pay of Rs.12,000-375-16,500. Thus, the order passed by thethird respondent is vitiated on non-application of mind. Thethird respondent while agreeing with the Enquiry Officer's reportthough need not elaborately give a finding in the light of thereply submitted by the petitioner to the show cause noticepointing out the defects while conducting enquiry, perversity inthe finding, etc., the same should have been answered by the thirdrespondent so that the appellate authority and this Court couldhave verified whether the same is sustainable or not.23.In the decision reported in (2010) 2 SCC 497(G.Vallikumari v. Andhra Education Society and Others) inparagraphs 19 and 20 held thus,"19.In his order, the Chairman of theManaging Committee did refer to theallegations levelled against the appellant andrepresentation submitted by her in the lightof the findings recorded by the enquiryofficer, but without even adverting to thecontents of her representation and giving a https://hcservices.ecourts.gov.in/hcservices/ semblance of indication of application of mindin the context of Rule 120(1)(d)(iv) of theRules, he directed her removal from service.Therefore, there is no escape from theconclusion that the order of punishment waspassed by the Chairman without complying withthe mandate of the relevant statutory rule andthe principles of natural justice. Therequirement of recording reasons by everyquasi-judicial or even an administrativeauthority entrusted with the task of passingan order adversely affecting an individual andcommunication thereof to the affected personis one of the recognised facets of the rulesof natural justice and violation thereof hasthe effect of vitiating the order passed bythe authority concerned.20.A careful reading of the Tribunal'sorder shows that though it did not find anyprocedural infirmity in the enquiry againstthe appellant, the order passed by theChairman of the Managing Committee wasnullified only on the ground of violation ofSection 8(2) of the Act read with Rule 120(2)of the Rules inasmuch as permission of theDirector was not obtained before removing theappellant from service. The High Court setaside the order of the Tribunal and indirectlyrestored the order passed by the Chairman ofthe Managing Committee because it was of theview that Section 8(2) is not applicable tothe minority institutions. Neither theTribunal nor the Division Bench of the HighCourt dealt with and decided the appellant'schallenge to the findings recorded by theenquiry officer and her plea that the extremepenalty of removal from service imposed on herwas not justified because she was not foundguilty of any serious misconduct."Thus, the order passed by the third respondent imposing punishmentagainst the petitioner is not valid.Issue No.(v) Whether the appellate authority is bound to givereasons while rejecting the appeal filed by the petitioner ?24.The petitioner rightly filed appeal against the order ofthe Disciplinary Authority on 28.5.2005 before the secondrespondent which was also rejected without stating any reason and https://hcservices.ecourts.gov.in/hcservices/ the said order was communicated vide letter dated 20.7.2006, whichreads as follows:"The Board of Directors of State ExpressTransport Corporation Tamil Nadu Ltd., in the140th meeting held on 30.06.06 after a detaileddiscussion resolved to reject your appealpetition in respect of disciplinary actiontaken against you."The procedure to be followed by the appellate authority as per theCommon service Rules is found in Rule 20. Rule 20(v) is relevantwhich reads thus,"The appellate authority shall considerwhether the findings are justified or whetherthe penalty is excessive or inadequate andpass appropriate orders within three months ofthe date of receipt of the appeal. ......."In the absence of specific rule, it is open to the appellateauthority to plead that if the order of the Disciplinary Authorityis concurred, no further reason need be given. However, in thiscase a specific rule is available. The petitioner also pleadedbefore the second respondent that only with good intention theaward amounts were deposited to avoid the Corporation getting abad name, and during 30 years of his service, he served withoutany blemish. All these facts are available in the memo filed inthe appeal dated 28.3.2005.25.As stated supra, the appellate authority failed tofollow the above statutory rule while disposing of the appeal andhas passed a non-speaking order. Hence the order of the appellateauthority is also unsustainable.26.How the appellate authority shall consider the appealand pass orders in appeal is decided by a Division Bench of thisCourt (S.J.Mukhopadhaya, J. (as he then was) and N.PaulVasanthakumar, J.) in the decision reported in 2008 WLR 86 (TheJoint Commissioner of Police & Another v. G.Anandan). Inparagraphs 10(a), 11 and 13, the Division Bench held thus,10.(a)Similar issue with regard toRule 23 of the Tamil Nadu Civil Services(Discipline and Appeal) Rules, was consideredby a Division Bench of this Court in thedecision reported in (1983) 2 MLJ 513(G.Srinivasan v. The Government of Tamil Nadu,represented by the Commissioner and Secretary https://hcservices.ecourts.gov.in/hcservices/ to Government, Revenue Department, Madras-9and others) and in paragraph 8 the DivisionBench held as follows:"8.Coming to the second questionas to whether the Board of Revenue hasacted in accordance with rule 23 of theTamil Nadu Civil Services(Classification, Control and Appeal)Rules, we feel that the Board of Revenuehas not kept in mind the requisitesnecessary, under rule 23. The order ofthe Board of Revenue dismissing theappeal has been extracted above. Theorder does not give any reason as to whyit confirmed the order of dismissalexcept saying that it did not see anyreason to interfere with the order of theCollector. We are of the view thathaving regard to the language used inrule 23, the dismissal of the appeal bythe Board of Revenue is not a properdisposal as contemplated by rule 23.Rule 23 provides as to what the appellateauthority should do while considering theappeal filed by a delinquent officeragainst the penalty imposed on him. Rule23(1) gives a mandate to the appellateauthority to consider: (a) whether thefacts on which the order was passed havebeen established; (b) whether the factsestablished afford sufficient ground fortaking action; and (c) whether thepenalty is excessive, adequate orinadequate. Thus it is clear from theperusal of rule 23 that the appellateauthority is enjoined to consider whetherthe facts on which the order of dismissalwas passed had been established and thefacts established afford sufficientgrounds for taking action and whether thepenalty is excessive or adequate. Rule23 directs the appellate authority toconsider certain matters before passingthe appellate order. The order of theappellate authority must therefore exfacie show that the matters referred toin rule 23 have been considered by theappellate authority before it passed itsorder. In this case, the order of the https://hcservices.ecourts.gov.in/hcservices/ appellate authority merely says that itsees no reason to interfere with theorder of the Collector and it does notindicate that it took all the mattersreferred to in rule 23 into considerationbefore rejecting the appeal. Obviously,the appellate authority the Board ofRevenue in this case, appears to haveoverlooked the criteria referred to inrule 23, as otherwise, it would have atleast referred to the relevant matterscontained in rule 23 in its order.Dealing with this ground of attack,Mohan, J., has stated that according tothe recent trend of opinion, if theappellate authority confirms the order inappeal, the appellate authority need notgive reasons. It may be that in a casewhere there is no statutory provisiondealing with the exercise of power by theappellate authority we have to fall backto the general principle as to whetherthe appellate authority is found to givereasons for his affirmation of the orderof dismissal; but where the power of theappellate authority is circumscribed by astatutory provision such as rule 23 as inthis case, the appellate authority shouldact within the confines of that rule andhe cannot pass an order arbitrarilywithout considering the matters referredto in rule 23. We are therefore of theview that the order of the Board ofRevenue, dated 4th September, 1976,stands vitiated for violation of Rule 23.On this ground, the order of the Board ofRevenue which confirms the orders ofdismissal passed against the appellantwill stand quashed and the Board ofRevenue has to pass a fresh order on theappeal filed by the appellant whichshould be treated as pending."(b)The Supreme Court in the decisionreported in AIR 1986 SC 1040 = (1986) 2 SCC651 (R.P.Bhat v. Union of India) consideredsimilar provision i.e, Rule 27(2) of theCentral Civil Services (Classification,Control and Appeal) Rules, 1965. Inparagraphs 3 to 5 the Supreme Court held thus: https://hcservices.ecourts.gov.in/hcservices/ "3. Having heard the parties, we aresatisfied that in disposing of the appealthe Director General has not applied hismind to the requirements of Rule 27(2) ofthe Rules, the relevant provisions ofwhich read as follows: “27. (2) In the case of an appeal againstan order imposing any of the penaltiesspecified in Rule 11 or enhancing anypenalty imposed under the said Rules, theappellate authority shall consider: (a) whether the procedure laid down inthese rules has been complied with and ifnot, whether such non-compliance hasresulted in the violation of anyprovisions of the Constitution of Indiaor in the failure of justice; (b) whether the findings of thedisciplinary authority are warranted bythe evidence on the record; and (c) whether the penalty or the enhancedpenalty imposed is adequate, inadequateor severe; and pass orders— (i) confirming, enhancing, reducing, orsetting aside the penalty; or (ii) remitting the case to the authoritywhich imposed or enhanced the penalty orto any other authority with suchdirection as it may deem fit in thecircumstances of the case.” 4. The word “consider” in Rule 27(2)implies “due application of mind”. It isclear upon the terms of Rule 27(2) thatthe Appellate Authority is required toconsider (1) whether the procedure laiddown in the Rules has been complied with;and if not, whether such non-compliancehas resulted in violation of anyprovisions of the Constitution or infailure of justice; (2) whether thefindings of the disciplinary authorityare warranted by the evidence on record;and (3) whether the penalty imposed isadequate; and thereafter pass ordersconfirming, enhancing etc. the penalty, https://hcservices.ecourts.gov.in/hcservices/ or may remit back the case to theauthority which imposed the same. Rule 27(2) casts a duty on the AppellateAuthority to consider the relevantfactors set forth in clauses (a), (b) and(c) thereof. 5. There is no indication in theimpugned order that the Director Generalwas satisfied as to whether the procedurelaid down in the Rules had been compliedwith; and if not, whether such non-compliance had resulted in violation ofany of the provisions of the Constitutionor in failure of justice. We regret tofind that the Director General has alsonot given any finding on the crucialquestion as to whether the findings ofthe disciplinary authority were warrantedby the evidence on record. It seems thathe only applied his mind to therequirement of clause (c) of Rule 27(2)viz. whether the penalty imposed wasadequate or justified in the facts andcircumstances of the present case. Therebeing non-compliance with therequirements of Rule 27(2) of the Rules,the impugned order passed by the DirectorGeneral is liable to be set aside." The above decision was followed by the SupremeCourt in its latter judgment reported in(2006) 4 SCC 713 Narinder Mohan Arya v. UnitedIndia Insurance Company Limited & Others).(c)Another Division Bench of this Courtin 2004 (3) LW 32 (M.Nagarajan & Others v. TheRegistrar, High Court, Madras-600 104 andanother) following the above referred decisionin AIR 1986 SC 1040 (cited supra), set asidethe order of the appellate authority for non-compliance of Rule 23 of the Tamil Nadu CivilServices (Discipline and Appeal) Rules, andremitted the matter back to the appellateauthority to pass fresh orders by followingthe said rules.11.In the light of the above decisionsand having regard to Rule 6(1) of the TamilNadu Police Subordinate Service (Disciplineand Appeal) Rules, 1955, quoted above to befollowed in this case by the appellate https://hcservices.ecourts.gov.in/hcservices/ authority, the order of the appellateauthority cannot be sustained. ...........13.In the result, we set aside theorder of the appellate authority dated12.8.2006 and remit the matter to the firstappellant herein to pass fresh ordersfollowing Rule 6(1) of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal)Rules, 1955, within a period of four weeksfrom the date of receipt of copy of thisorder. The order of the learned single Judgeis set aside."In the above cited decision viz., (2009) 2 SCC 570 (Roop SinghNegi v. Punjab National Bank and Others) in paragraph 23 theSupreme Court held that if orders of the Disciplinary Authorityand the Appellate Authority affect the civil rights of theemployee, reasons must be stated for arriving at the decisions.Thus, the order of the appellate authority is unsustainable.27.In this case the petitioner has already retired fromservice on 30.6.2006. Further, in view of the findings given byme for Issue Nos.(i) to (iv), I am not inclined to remand the caseto the second respondent for passing fresh orders in the appeal. Issue No.(vi) Whether the Government is justified in dismissingthe review petition on the ground of delay ?28.Petitioner filed review petition before the firstrespondent as contemplated under Rule 23 of the Common ServiceRules, which reads as follows,"Notwithstanding anything contained inthese Rules, the Managing Director or theAppellate Authority (hereinafter referred tothe "Reviewing Authority") may call for therecord of the case within six months of thedate of the final order and after reviewingthe case pass such orders thereon as it maydeem fit. ........."The said review petition filed by the petitioner was rejected bystating two reasons viz., the Government have no role to reviewthe petition and the review has been filed after six months, whichis beyond the time fixed under Rule 23 of the Common ServiceRules.29.Rejection of review petition filed by the petitioner on14.8.2006 by order dated 12.11.2006 on the ground of delay cannotbe sustained since the order was passed in the appeal only on https://hcservices.ecourts.gov.in/hcservices/

30.6.2006 in the 140th Board of Directors Meeting. The reviewpetition having been filed on 14.8.2006, the same is within sixmonths. Therefore rejection of review petition by the Governmenton the ground of delay is unsustainable as it has been passedwithout application of mind as it is passed without even lookinginto the date of the order of the second respondent as well as thefiling date of review by the petitioner. Issue No.(vi) is alsodecided in favour of the petitioner.30.It is not stated by the third respondent or by thesecond respondent/appellate authority that the petitioner actedwith any motive. Throughout the plea of the petitioner is that hehas acted bona fidely to protect the interest of the Corporationand deposited the award amount to avoid attachment of theCorporation's property in execution proceedings. In short, thepetitioner acted without any iota of ill-will or motive andcomplied with the order passed by a competent Court/Tribunal.31.For satisfying the Court decree/award, no Officer couldbe proceeded with, unless motive or some personal gain is allegedagainst the said Officer. As stated supra, legal opinions werealso obtained before depositing the amount. The Enquiry Officerand all the respondents failed to consider the said aspect eventhough the petitioner repeatedly pleaded to that effect. Insteadof appreciating the said stand of the petitioner, Enquiry Officerhas erroneously given a finding that the petitioner admitted thedelinquency and held that the charges are proved. The thirdrespondent, namely the Disciplinary Authority and the secondrespondent, namely the appellate authority also erroneously failedto consider the said aspect. Non-consideration of relevantmatters by the decision making authority vitiates the decisionmaking process and ultimately the decision itself.32.Taking note of all the above facts and having regard tothe unblemished record of the petitioner, who had retired fromservice as early as on 30.6.2006, the impugned orders are setaside and the respondents are directed to pay the difference insalary to the petitioner which was reduced pursuant to theimpugned orders. The respondents are directed to pay allconsequential benefits to the petitioner by considering the samein accordance with law, within a period of eight weeks from thedate of receipt of copy of this order. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vrTo1.The Secretary to Government, Transport Department,Fort St.George, Chennai – 9.2.The Finance Committee,State Express Transport Corporation Tamil Nadu Ltd.,Thiruvalluvar House, No.2, Pallavan Salai, Chennai – 2.3.The Managing Director,State Express Transport Corporation Tamil Nadu Ltd.,Thiruvalluvar House, No.2, Pallavan Salai, Chennai – 2.+1cc to Mr.Anand & Suryas,Advocate Sr 23909GV(CO)km/19.4.W.P.No.747 of 2007