THE HONOURABLE MR v. V.M.Sivanandam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.4.2009CORAM:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANWrit Appeal Nos.303 and 304 of 2009& M.P.Nos.1 and 1 of 2009 1. Tamilnadu Slum Clearance Board, represented by its Chairman, No.5, Kamarajar Salai, Chennai-5. .. 1st appellant in W.A.No.303 of 20092. Chairman, Tamilnadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai-5.3. Managing Director, Tamilnadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai-5.4. A.Nedunchezhiyan.. Appellants 2, 3 and 4 in W.A.No.303 of 2009 and Appellants 1 to 3 in W.A.No.304 of 2009vs.V.M.Sivanandam .. Respondent in both the Writ AppealsWrit Appeal No.303 of 2009 against the order dated 13.8.2008passed by the learned single Judge in Writ Petition No.15752 of 2008on the file of this Court. Writ Petition filed under Article 226constitution of India, to issue a writ of Certiorarified Mandamus tocall for the records of the second respondent issued inNa.Ka.No.A1/12479/2007 dated 31.12.07 and the proceedings of thefirst respondent issued in Appeal in Na.Ka.No.A1/12479/2007 dated30.5.2008 and quash the same as illegal and direct the respondents todetermine the pay and retirement benefits of the petitioner withoutreference to the impugned punishment and may be pleased to pass suchfurther or other orders as the Court may deem fit.Writ Appeal No.304 of 2009 against the order dated 13.8.2008passed by the learned single Judge in Writ Petition No.15753 of 2008on the file of this Court. Writ petition filed under Article 226 https://hcservices.ecourts.gov.in/hcservices/ Constitution of India, to issue a writ of Certiorarified Mandamus, tocall for the records of the 1st respondent issued inNa.Ka.No.A1/12479/2007 dated 2.4.2008 and quash the same as illegaland direct the respondents to determine the pay and retirementbenefits of the petitioner without reference to the impugnedpunishment and may be pleased to pass such further or other orders asthe Court may deem fit.For appellants : Mr.M.Venkatachalapathy, Senior Counsel for Mr.R.ChellamuthuFor respondent : Mr.P.ChandrasekaranJUDGMENT(Judgment of the Court was delivered by S.J.Mukhopadhaya,J) Pursuant to departmental proceedings initiated against therespondent-writ petitioner, the appellants-Tamil Nadu Slum ClearanceBoard (for shot, 'the TNSCB') inflicted punishment of censure, byorder dated 31.12.2007, i.e. on the date of retirement of therespondent-writ petitioner. After the retirement, by another orderdated 2.4.2008, the TNSCB decided to treat the period of suspensionas suspension. Both the punishment orders having been confirmed bythe appellate authority, vide order dated 30.5.2008, two WritPetitions were preferred by the respondent-writ petitioner, oneagainst the order of punishment and the other, against, treating theorder of suspension as suspension. The learned single Judge havingallowed both the Writ Petitions by the impugned common order, thepresent two Writ Appeals have been preferred by the TNSCB.2. As the Writ Appeals could be disposed of on a short point, itis not necessary to discuss all the facts, except the relevant one.3. The respondent-writ petitioner, who was a DivisionalAccountant under the TNSCB, was suspended on 10.7.2007 on the groundthat he had acted against the direction of the High Court and wasproceeded departmentally on 17.8.2007. An Enquiry Officer wasappointed and after necessary enquiry, the Enquiry Officer submitteda report, exonerating the respondent from the charge(s). Therespondent was to retire with effect from 31.12.2007 and in that viewof the matter, he was allowed to re-join duty on 14.12.2007 oncondition that he will not be hindrance to the enquiry.4. Though the Enquiry Officer held the respondent not guilty ofthe charge(s), on the date of retirement, i.e. on 31.12.2007, theChairman of the TNSCB, issued the impugned order dated 31.12.2007, inNa.Ka.No.A1/12479/07, imposing punishment of censure. The relevantEnglish version of the order dated 31.12.2007, as was produced by the https://hcservices.ecourts.gov.in/hcservices/ counsel for the parties, reads as follows:"Charges framed against Thiru.V.M.Sivanandam, theexplanation submitted by him to the charges and enquiryofficer's report were considered. Enquiry officer'sreport is not accepted. He has failed to comply with theCourt's order. Hence, charges against him are proved."5. The appeal preferred by the respondent-writ petitioner havingbeen rejected on 30.5.2008, the first Writ Petition was preferred.After retirement, when the question fell for consideration as to howthe period of suspension from 10.7.2007 to 13.12.2007 be treated(counted), the Chairman of the TNSCB issued the impugned orderNo.A1/No.12479/2007, dated 2.4.2008 and ordered that the suspensionperiod be treated as "suspension". In view of such order, the secondWrit Petition in W.P.No.15753 of 2008 was preferred by the respondentherein. 6. The learned single Judge, by the impugned order dated13.8.2008 passed in Writ Petition Nos.15752 and 15753 of 2008, havingnoticed that the Enquiry Officer held the respondent not guilty ofthe charges and that the reason for differing with the findings ofthe Enquiry Officer having been not recorded and communicated to therespondent-writ petitioner, set aside the order ofpunishment/censure, dated 31.12.2007 and the order dated 2.4.2008, bywhich it was ordered that the period of suspension be treated assuspension.7. Learned Senior Counsel appearing for the TNSCB submitted thatthe charges issued were grave and already show cause notice had beenissued on the charge-employee (respondent-writ petitioner), but hehad replied and all those records were taken into consideration inthe enquiry report. Under the law, after the show cause notice, ifreply is found out to be not satisfactory, it is open for the TNSCBto impose minor punishment of censure even without holding regulardepartmental proceedings. Therefore, even if the Enquiry Officer hadsubmitted a report, exonerating the respondent-writ petitioner, theTNSCB had power to ignore the same to give its own findings on thebasis of the charge memo and the reply submitted by the charge-employee. Further, according to the learned Senior Counsel appearingfor the appellants-TNSCB, the charges having been found proved, itwas well within the jurisdiction of the TNSCB to treat the period ofsuspension as suspension for the purpose, so as to deny salary forthe rest of the period.8. Per contra, learned counsel appearing for the respondent-writpetitioner contended that when the Enquiry Officer once held therespondent not guilty of the charges, if the TNSCB refused to acceptthe same, it ought to have given reasons for not accepting thefindings of the Enquiry Officer and should have given an opportunity https://hcservices.ecourts.gov.in/hcservices/ to the charge-employee (respondent-writ petitioner) to explain theposition.9. We have heard the learned counsel appearing for the partiesand perused the records.10. In the present case, it is not necessary to decide the legalissue raised by the parties, i.e. whether in the facts andcircumstances, it was open for the TNSCB to ignore the enquiry reportfor imposing minor punishment of censure on the basis of the chargememo issued and the reply submitted by the charge-employee(respondent-writ petitioner), for the following reasons.11. Under the law, it is always open for the employer to issue ashow cause notice, giving details of the allegations, but theemployee must be informed that if the reply is not satisfactory, thecompetent authority/disciplinary authority may impose punishment. Itis only then the charge-employee will understand the gravity of theshow cause notice as distinct from the explanation and can filetruthful and effective reply. After the said reply, if thedisciplinary authority comes to a definite conclusion that theallegations as levelled, have not been justified by the charge-employee by submitting a show cause reply, it is open for thedisciplinary authority to impose any minor punishment under the law.But a decision in any case be given that the charges as framed havebeen proved or that the show cause reply is not satisfactory.12. What has happened in the present case is that thedisciplinary authority thought it proper to go for major punishmentand therefore, suspended the respondent and initiated a regulardepartmental enquiry by issuance of charge sheet and appointing theEnquiry Officer. A day-to-day enquiry was held, giving opportunity tothe charge-employee and enquiry report was also submitted. Thedisciplinary authority thereafter did not choose to give any reasonfor non-acceptance of the enquiry report. Simply saying that therespondent had not followed the Court's order, without evendiscussing as to what was the Court's order which was not followed bythe respondent, held the charges proved. Therefore, it will beevident that the disciplinary authority failed to apply his mind tosee as to what were the charges and whether those charges standproved as to the materials placed on record and could be justified bythe employee. The relevant English version of the impugned order asquoted above, having been passed without application of mind, wefind no ground to uphold such order, nor for the said reasons, we areinclined to interfere with the impugned order passed by the learnedsingle Judge. 13. Admittedly, the respondent retired from service on 31.12.2007and on the date of retirement, the disciplinary authority hurriedlypassed the order of punishment on the same day. The question as to https://hcservices.ecourts.gov.in/hcservices/ how the period of suspension shall be treated, was not even decidedin the manner it is required to be determined, nor any application ofmind was made on 2.4.2008 to decide whether the period of suspensionshould be counted towards duty or not. For such non-application ofmind, if the learned single Judge has interfered with the impugnedorders dated 31.12.2007/2.4.2008/30.5.2008, it does not call for anyinterference. 14. However, we accept the suggestion made by the learned SeniorCounsel appearing for the appellants-TNSCB that as to how the periodof suspension, i.e. from 10.7.2007 to 13.12.2007 should be countedand whether the employee would be entitled to full salary for thesaid period or not, should be decided by the disciplinary authorityand for that purpose, the matter should have been remitted to thedisciplinary authority. 15. We find from the impugned order dated 13.8.2008 passed by thelearned single Judge that the learned single Judge has alreadydirected the authority to determine the pay and terminal benefits ofthe respondent-writ petitioner and ordered to pay the same. The saidorder of the learned single Judge is modified to the extent that thematter is remitted to the disciplinary authority to decideindependently as to how the period of suspension should be treated,and as to what salary the respondent-writ petitioner would beentitled to under the law, during the period of suspension, in viewof the fact that no punishment was inflicted while the respondent wasin service. For such determination, the TNSCB will give notice to therespondent-writ petitioner and may refer to the non-compliance of theHigh Court's order and after hearing the respondent, the TNSCB willpass appropriate orders, preferably within three months from the dateof receipt/production of a copy of this judgment.16. The impugned order dated 13.8.2008 passed by the learnedsingle Judge stands modified to the extent indicated above. The WritAppeals stand disposed of with the aforesaid observations/directions.No costs. The Miscellaneous Petitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. cs https://hcservices.ecourts.gov.in/hcservices/ To1. Tamilnadu Slum Clearance Board, represented by its Chairman, No.5, Kamarajar Salai, Chennai-5.2. Chairman, Tamilnadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai-5.3. Managing Director, Tamilnadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai-5.+ 2 CC To Mr.P.Chandrasekaran, Advocate SR NO.16737/09Writ Appeal Nos.303 & 304 of 2009KGK {CO}TP/14.5.2009.