R.Dhanasekaran v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.02.2010CORAM:THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.10390/2009 & M.P.Nos.1,2&3/2009R.DhanasekaranDeputy Superintendent of Police,State Human Rights Commission,Chennai – 600 028. ... Petitioner -vs-1. State of Tamil Nadu, Represented by Principal Secretary to the Government, Home Department, Fort Saint George, Chennai – 600 009.2. The Director General of Police, Office of the Director General of Police, Mylapore, Chennai – 600 004. ... RespondentsPrayer: The Writ Petition filed under Article 226 of the Constitutionof India for issue of Writ of Certiorarified Mandamus to call for therecords relating to the order passed by the first respondent in G.O.2(D) No.177 dated 23.04.2009 and quash the same and to direct therespondents to issue an order of promotion as AdditionalSuperintendent of Police with effect from June 2006 and to pay allbenefits. For Petitioner :Mr.M.MD.Ibrahim Ali For Respondents :Mr.V.Manoharan for R1 & R2 O R D E RBy consent the main Writ Petition itself is taken up fordisposal. The prayer in the writ petition is to quash an order passedby the first respondent in G.O.2(D) No.177 dated 23.04.2009, by whichan order of punishment has been passed against the petitionerdirecting stoppage of increment for a period of one year withcumulative effect. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner is at present working as a DeputySuperintendent of Police. While the petitioner was working asAssistant Commissioner of Police, Sembiam Range, Perambur. A chargememo dated 06.12.2006, came to be issued to the petitioner allegingthat he has violated Rule 20(1) of the Government Servants ConductRules and received illegal gratification from a Wine Ship and allowedthe sale of spurious liquor. The petitioner submitted hisexplanation and an enquiry officer was appointed to conduct anenquiry into the charge and the enquiry officer submitted an enquiryreport holding that the charges are not proved against thepetitioner. The first respondent did not accept the findings of theenquiry officer and chose to differ from the findings and issued anotice on 10.07.2008 called upon the petitioner to submit hisexplanation on 04.08.2008 placing several factual details. However,the first respondent by the impugned order imposed the penalty ofstoppage of increment with cumulative effect for a period of oneyear. 3. The learned counsel appearing for the petitioner madeelaborate submissions on the factual aspects and contend that theenquiry officer properly analyzed all the materials available onrecord and came to a conclusion that the charges are not proved.This factual finding has been reversed by the first respondent in theimpugned order without assigning any reason and without consideringthe materials placed by the petitioner. The learned counsel wouldfurther submit even while issuing the notice dated 10.07.2008disagreeing with the enquiry officer's report, the first respondentpre-decided the matter and subsequently without application of mind,the first respondent has passed the impugned order. Further, thelearned counsel would submit that in respect of the same allegationconcerning the same Wine Shop disciplinary action was taken againstone Thiru.V.R.L.Simhan, Deputy Collector, who was former TalukExercise Officer of Purasaivakkam, Perambur Taluk, and charges wereframed against the said Deputy Collector under Rule 17(b) of theTamil Nadu Civil Services (Discipline and Appeal) Rules and chargeNo.1 is identical to that of the allegation made against thepetitioner. The enquiry officer appointed to enquire into the chargeagainst the said Deputy Collector submitted a report that the chargesare not proved. When the matter was placed for the consideration ofthe Government, the Government chose to accept the findings of theenquiry officer and decided to drop the charges against the saidDeputy Collector, in G.O.D.No.308 Revenue Department dated31.05.2007. By relying upon this Government order, the learnedcounsel appearing for the petitioner would contend that thepetitioner alone has been discriminated in the matter. The learnedcounsel relied upon the decision of the Hon'ble Division Bench ofthis Court in W.P.No.40062/2006 dated 27.04.2009 and the decisions ofthis Court in W.P.No.825 and 826/2007 dated 21.01.2008 in support ofhis contention. https://hcservices.ecourts.gov.in/hcservices/

4. The learned Additional Government Pleader by relying uponthe counter affidavit would contend that based on an enquiryconducted by the Directorate of Vigilance and Anti-corruption onallegations of receipt of mamool the respondent department wasdirected by the Government by G.O.2.D No.417 Home Department dated28.09.2005 to take departmental disciplinary action against thepetitioner and three others. That apart departmental action hasrecommended against Mr.V.R.L.Simhan, former Taluk exercise officerand Mr.Thilagam, formerly manager, TASMAC, Ambattur. Subsequently,the charge was framed against the petitioner and the enquiry officerheld that the charges were not proved. However, the findings of theenquiry officer were reviwed on valid grounds and the Governmentafter carefully consideration of the matter has passed the impugnedorder. 5. The learned Additional Government Pleader would strenuouslycontended that there is enough material to show that the petitioneris guilty and the Government was justified in reviewing the matterand differing with the conclusion arrived at by the enquiry officer.The learned Additional Government Pleader referred to the avermentsin paragraph 7 to 13 of the counter affidavit. As regards the groundof discrimination raised, the learned Additional Government Pleaderwould submit that the question of similarly placed person in adepartmental proceedings does not arise.6. In reply, the learned counsel appearing for the petitionersubmitted that all the factual allegations referred to in the counteraffidavit have been denied in the reply affidavit and the punishmentawarded to the other Inspectors of Police has relevance to punishmentawarded to the petitioner and one Mr.Baskar, Assistant Commissionerof Police was allowed to retire and a punishment of pension cut ofRs.300 per month for one year alone was imposed. The avermentscontained in paragraph 7 to 13 of the counter affidavit were deniedin the reply and it is submitted that the first respondent did notconsider the matter in a proper prospective, which resulted in theimpugned order.7. I have considered the submissions on either side and perusedthe materials on record.8. Several factual details have been placed by the petitioner,which are being converted by the respondents in the counter and whichaverments are refuted in the reply affidavit. This Court whileexercising jurisdiction under Article 226 of the Constitution ofIndia will not act as the appellate authority to the disciplinaryauthority and re-appreciate the factual material on record.Therefore, this Court is considering only the question as to whetherthe decision making process is fair and reasonable and as to whetherthe procedure adopted by the first respondent while differing from https://hcservices.ecourts.gov.in/hcservices/ the conclusion arrived at by the enquiry officer is correct and as towhether the law laid down by the Hon'ble Supreme Court on thissubject has been taken note of. At this stage, it is to be notedthat we are guided by the decision of the Hon'ble Supreme Court inthe case of Lav Niham Vs. Chairman & MD, ITI Ltd, and another –(2006) 9 SCC 440. In the said case, the department proceedings wereinitiated against the delinquent, the enquiry officer exonerated him,but the disciplinary authority passed an order stating that he hasprovisionally concluded that the delinquent in that case is not a fitperson to be retained in service and accordingly proposed to imposethe penalty of removal. The delinquent therein was granted 15 daystime to submit his representation against such proposal. The Hon'bleSupreme Court after considering the facts of the said case andreferring to the earlier decisions of the Hon'ble Supreme Court heldthus:-"11. In Punjab National Bank V. Kunj Behari Misra-(1998) 7 SCC 84 a Bench of this Court considered Regulation7(2) of the Punjab National Bank Officer Employees'(Discipline and Appeal) Regulations, 1977. The Regulationitself did not provide for the giving of any notice beforethe disciplinary authority differed with the view of theenquiry officer. This Court held:"The result of the aforesaid discussion would be thatthe principles of natural justice have to be read intoRegulation 7(2). As a result thereof, whenever thedisciplinary authority disagrees with the enquiry authorityon any article of charge, then before it records its ownfindings on such charge, it must record its tentativereasons for such disagreement and give to the delinquentofficer an opportunity to represent before it records itsown findings on such charge, it must record its tentativereasons for such disagreement and give to the delinquentofficer an opportunity to represent before it records itsfindings. The report of the enquiry officer containing itsfindings will have to be conveyed and the delinquent officerwill have an opportunity to persuade the disciplinaryauthority to accept the favourable conclusion of the enquiryofficer. The principles of natural justice, as we havealready observed, require the authority which has to take afinal decision and can impose a penalty, to give anopportunity to the officer charged of misconduct to file arepresentation before the disciplinary authority records itsfindings on the charges framed against the officer."12. This view has been reiterated in Yoginath D.BagdeV.State of Maharashtra – (1999) 7 SCC 739. In this casealso Rule 9(2) of the Maharashtra Civil Services (Disciplineand Appeal) Rules, 1979 did not specifically provide for a https://hcservices.ecourts.gov.in/hcservices/ disciplinary authority to give an opportunity of hearing tothe delinquent officer before differing with the view of theenquiry officer. The Court said:"But the requirement of 'hearing' in consonance withthe principles of natural justice even at that stage has tobe read into Rule 9(2) and it has to be held that before thedisciplinary authority finally disagrees with the findingsof the enquiring authority, it would give an opportunity ofhearing to the delinquent officer so that he may have theopportunity to indicate that the findings recorded by theenquiring authority do not suffer from any error and thatthere was no occasion to take a different view. Thedisciplinary authority, at the same time, has to communicateto the delinquent officer the 'TENTATIVE' reasons fordisagreeing with the findings of the enquiring authority sothat the delinquent officer may further indicate that thereasons on the basis of which the disciplinary authorityproposes to disagree with the findings recorded by theenquiring authority are not germane and the finding of 'notguilty' already recorded by the enquiring authority was notliable to be interfered with'.13. We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It isclear that no notice at all was given before thedisciplinary authority recorded its final conclusionsdiffering with the finding of fact of the inquiry officer.The notice to show cause was merely a show-cause against theproposed punishment. In view of the long line ofauthorities, the decision of the High Court cannot besustained. The appeal is accordingly allowed and thedecision of the High Court is set aside." Thus the legal principle which could be culled out from theabove decision of the Hon'ble Supreme Court is that when disciplinaryauthorities differs with the view taken by enquiry officer, he isbound to do the following:-i)Give notice mentioning the tentative conclusion to thedelinquent.ii)Afford an opportunity of hearing to the delinquent.iii)After hearing the delinquent before the disciplinary authoritycould arrive at the final finding of guilt.iv)Thereafter, the delinquent should be served with the noticerelating to the proposed punishment. 9. As in the case of Lav Nigam, referred supra, in the case ofthe petitioner also the enquiry officer exonerated the petitionerfrom the charge, but the disciplinary authority chose to defer fromsuch conclusion. However, the procedure adopted by the disciplinary https://hcservices.ecourts.gov.in/hcservices/ authority is not in accordance with the law laid down by the Hon'bleSupreme Court as referred above. The disciplinary authority hasfailed to comply with the conditions (ii), (iii), and (iv) as set outsupra and passed the final order of punishment. Therefore, it has tobe necessarily held that the procedure adopted by the disciplinaryauthority is not in consonance with the law laid down by the Hon'bleSupreme Court. 10. Further, it is to be noted that no reasons have beenassigned by the first respondent while passing the impugned orderexcept for the observations in paragraph 3 at page 9 of the impugnedorder. The previous paragraphs related to the entire disciplinaryproceedings, which were initiated against the petitioner. In theinstant case, the first respondent chose to differ from the findingsof the enquiry officer and while doing so it is incumbent upon thefirst respondent to support its provisional conclusion with reasonsand also setting out as to how the objections given by the petitionerto the notice dated 10.07.2008 are not tenable. However, it is seenthat no such reasons have been assigned and the order of punishmenthas been imposed. Therefore, on this ground also the impugned orderis liable to be set aside.11. In such view of the matter, I am inclined to pass thefollowing order:- The writ petition is allowed and the impugned order is set asideand the matter is remanded for fresh consideration for the firstrespondent. The petitioner shall treat the proceedings of the firstrespondent dated 10.07.2008 in letter No.SC/6317-09-2007 as a showcause notice setting out the tentative conclusion of the disciplinaryauthority for differing from the finding of the enquiry officer. Thepetitioner is entitled to submit his objections to the tentativeconclusion within a period of two weeks from the date of receipt of acopy of this order. On receipt of the reply, the first respondentshall consider the same and pass orders on merits and in accordancewith law within a period of eight weeks thereafter. While doing sothe first respondent shall also take into consideration theplea of discrimination raised by the petitioner by relying uponG.O.D.No.308, Revenue Department dated 31.05.2007 exonerated theThiru.V.R.L.Simhan, formerly Taluk Exercise Officer from the chargesin respect of the same allegation against the petitioner. 12. With these observations the writ petition is allowed on theabove terms. Connected miscellaneous petitions are closed. No costs. Sd/- Asst. Registrar./true copy/ Sub Asst. Registrar.pbn https://hcservices.ecourts.gov.in/hcservices/ https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Secretary to the Government, State of Tamil Nadu, Home Department, Fort Saint George, Chennai – 600 009.2. The Director General of Police, Office of the Director General of Police, Mylapore, Chennai – 600 004. + 1 cc to M/S.M.MD.Ibrahim ali, Advocate, SR 11359 Order inW.P.No.10390/2009CSI (CO)RH (24.2.10)