A.Sankaran v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.02.2012CORAMTHE HONOURABLE MR.JUSTICE P.JYOTHIMANIandTHE HONOURABLE MR. JUSTICE M. DURAISWAMYW.A.Nos.2652 & 2653 of 2010 &M.P.No. 1 of 2010A.Sankaran .. Appellant in both W.As/ (Petitioner in WP)v.State of Tamil NaduRepresented by Secretary to GovernmentHome (Court VI) Department SecretariatFort St. GeorgeChennai – 600 009. ... Respondent in both W.As/ (Respondoent in WP)Writ Appeal Nos.2652 and 2653 of 2010 filed under Clause 15of Letters Patent against the common order of the learned singleJudge made in W.P.Nos.19937 of 2004 and 24585 of 2007, dated03.03.2010. WP No.19937/2004 : Writ petition praying to issue a writ ofcertiorari to call for the records pertaining to the order passed by the respondent in G.O.(2D) No.136, Home (Courts VI) Department, dated23.3.2004 and quash the same.WP No.24585/2007 : Writ Petition praying to issue a writ ofcertiorari to call for the recrds pertaining to the order passed by the respondent in G.O.(2D) No.233, dated 28.6.05, on the file of the respondent and quash the same. For Appellant : Mr.M.RaviFor Respondents :Mr.N.Visagamoorthy, G.A. COMMON JUDGMENT M. DURAISWAMY,J The above Writ Appeals arises against the common order dated 03.03.2010 passed by the learned single judge made inW.P.Nos.19937 of 2004 and 24585 of 2007 https://hcservices.ecourts.gov.in/hcservices/

The appellant filed writ petition in W.P.No.19937of 2004 to issue a Writ of Certiorari calling for the records pertaining to the order passed by the respondent in G.O.(2D) No.136,Home (Courts-VI) Department, dated 23.3.2004 and to quash the same. The appellant also filed another writ petition in W.P.No.24585of 2007 to issue a Writ of Certiorari to call for the records pertaining to the order passed by the respondent in G.O.(2D) No.233,Home (Courts-VI) Department, dated 28.6.2005 and to quash the same.

It is not in dispute that the appellant was appointed as Grade-II Assistant Public Prosecutor on 16.9.1978. Thereafter, he was promoted as Grade-I Assistant Public Prosecutor and subsequently he was promoted as Assistant Director of Prosecution. On 1.3.2000,the appellant joined as Assistant Director of Prosecution, Villupuram. During his tenure as Assistant Director of Prosecution, Villupuram, the appellant suffered a charge memo dated 21.12.2001,for the following charges:-Charge No.I : That while he was working as AssistantDirector of Prosecution, Villupuram during the period from1.3.2000 to 10.6.2000, he abused his official position, authority and with corrupt motive habitually demanded illegal gratification for himself in the form of money from the Assistant Public Prosecutors from his OfficeAssistants and Police Officers who are working under his control and police officials in his jurisdiction in the following instances:-Instance.

When the appellant was working as Assistant PublicProsecutor, Perambalur, another charge memo dated 27.11.2003 was issued to him for the following charges: Charge I: Highly reprehensible conduct in sending xeroxcopies of the newspaper cuttings dated 30.01.02 5.2.02 and6.3.02, purported to have been published in Tamil Daily"Thinathanthi" as enclosures to his petition dated 30.03.02(seeking transfer to Thiruvallur or Chennai City),fabricating the news items by inserting a sentence in each news item by manipulation to appear as though the Hon'bleMagistrate had stated that Thiru.A.Sankaran, had appeared and argues in the case, while there was no such sentence in the original news items which the delinquent officer hadmade deliberate and with honest intention in a misleading manner by manipulation of xerox copies. Charge II: Submitting claims of T.A. from 2.2.02 to 4.2.02for attending the inquiry at the office of the Commissionerfor Disciplinary Proceedings, Vellore, which was later verified to be false and that the Delinquent Officer had actually attended the inquiry only on 31.1.02 and 1.2.02 at Vellore. He acknowledged the charge memo on 3.12.2003 and submitted his explanation on 16.12.2003.The appellant submitted his explanation and the authorities having not satisfied with the explanation submitted by the appellant, conducted an enquiry. The Enquiry Officer after taking into consideration the evidences available on record, found both the charges as proved. Based on the report of the Enquiry Officer, byorder dated 28.6.2005, the respondent imposed the punishment of censure. Aggrieved over the order passed by the respondent, the appellant filed the writ petition in W.P. No.24585 of 2007 and the learned single Judge confirmed the order of the respondent and https://hcservices.ecourts.gov.in/hcservices/ dismissed writ petition. Aggrieved over the same, the appellant has filed writ appeal in W.A.No.2653 of 2010.

Heard Mr.M.Ravi, learned counsel appearing on behalf of the appellant and Mr.N.Visagamoorthy, learned GovernmentAdvocate appearing on behalf of the respondent.

Learned counsel appearing on behalf of the appellant submitted that the order of the respondent is liable to be set aside on the ground that no written complaint was given; the charges were vague in respect of demand of money and no independent witness was examined. The learned counsel appearing for the appellant also submitted that the respondent/disciplinary authority without applying his mind and also without giving any finding with regard to the charges framed as against the appellant and also with regard to the report of the Enquiry Officer, imposed the punishment on the appellant.

Learned counsel appearing on behalf of the appellant relied upon the following judgments in support of his submissions: (i) 2009(1) SCC (L&S) 398 (Roop Singh Negi v. PunjabNational Bank and others ) wherein the Hon'ble Apex court held that as the orders passed by the disciplinary authority and the appellate authority have severe civil consequences, appropriate reasons should have been assigned. A decision must be arrived at on some evidence, which is legally admissible. (ii) 2011 (5) CTC 564 (Anil Gilurker v. Bilaspur RaipurKshetria Gramin Bank & Anr. ) wherein the Hon'ble Apex court held that no enquiry can be sustained on vague charges. (iii) The learned counsel appearing for the appellant also relied upon an unreported judgment of a Division Bench of this court dated 3.7.2008 made in W.A.No.587 of 2008 (Secretary to Government, Environment and Forest Department, Chennai -9 and others v.M.Subramanian) wherein this court held that departmental enquiry initiated against the delinquent was bad from the very inception inasmuch as it purported to proceed on vague charges.

Countering the submissions made by the learned counsel appearing for the appellant, learned Government Advocate appearing on behalf of the respondent submitted that the Enquiry Officer has categorically found that instance Nos. 6, 8, 9, 11 and 12 in chargeNo.I were proved and instance No.13 in charge No.I was partly proved and in respect of Charge No.2, all the 3 instances were proved against the appellant. The learned Government Advocate also submitted that the Enquiry Officer also found that both the charges framed against the appellant on 27.11.2003 were proved. The learnedGovernment Advocate further submitted that the order passed by the https://hcservices.ecourts.gov.in/hcservices/ respondent are just and proper and the orders of the learned single Judge does not warrant any interference by this court.

It is not in dispute that during the course of enquiry,27 witnesses were examined and 13 documents were marked. Aftertaking into consideration the oral and documentary evidences, the Enquiry Officer submitted his report finding that instance Nos. 6, 8,9, 11 and 12 in charge No.I were proved and instance No.13 in chargeNo.I was partly proved. The Enquiry Officer also found that all the3 instances in Charge No.2, were proved. Similarly, in the other charge memo dated 27.11.2003, the Enquiry Officer found that both the charges were proved. We are conscious of the fact that this court cannot reappreciate the evidence in the writ proceedings under Article 226 of the Constitution of India 10. The Enquiry Officer has filed the enquiry report after taking into consideration the oral and documentary evidences. Therefore, the contention of the learned counsel appearing on behalf of the appellant that no independent witness was examined cannot be sustained.

The learned counsel for the appellant contended that the charges framed as against the appellant are vague, therefore, the impugned orders are liable to be set aside. On a reading of the charges framed as against the appellant, it could be seen that the charges are specific and clear. Therefore, the contention of the learned counsel for the appellant that the charges are vague is also liable to be rejected. Accordingly, the same is rejected.

There is no dispute with regard to the legal propositions laid down in the judgments relied upon by the learned counsel appearing for the appellant. However, the facts and circumstances of the case differs from the case on hand. Therefore, the above judgments are not applicable to the facts and circumstances of the present case.

The learned counsel for the appellant contended that the Enquiry Officer has not applied his mind and mechanically filed the enquiry report. On a reading of the enquiry report in both the matters, it could be seen that the Enquiry Officer has discussed each and every point after taking into consideration the oral and documentary evidences. The Enquiry Officer has not mechanically filed his report finding that all the charges are proved. In fact, the Enquiry Officer found that some of the charges were not proved. Therefore, it cannot be said that the Enquiry Officer has passed the order without applying his mind. The Enquiry Officer has applied his mind and submitted a detailed report.

The learned counsel for the appellant contended that there was no written complaint as against the appellant before the https://hcservices.ecourts.gov.in/hcservices/ issuance of charge memo. For issuance of charge memo, no prior written complaint is required under law. The learned single Judgehas rightly rejected the said contention as not sustainable.

However, we see merit in the contentions raised by the learned counsel for the appellant that the impugned orders of the respondent/disciplinary authority suffers from non application of mind. Though 27 witnesses were examined and 13 documents were marked before the Enquiry Officer and the Enquiry Officer submitted his report with regard to the charges framed as against the appellant in a detailed manner, the respondent/disciplinary authority, without applying his mind, imposed the punishment of stoppage of increment for a period of two years with cumulative effect for the charge memo dated 21.12.2001 and imposed the punishment of censure for the charge memo dated 27.11.2003. It is needless to say that the respondent, being the disciplinary authority, ought to have applied his mind before imposing punishment on the appellant. The respondent has not given any finding in his order for imposing punishment on the appellant. Except the finding recorded by the respondent in the penultimate paragraphs in both the orders, there is no finding given by the respondent with regard to the charges framed against the appellant and also with regard to the report submitted by the EnquiryOfficer. It is the duty of the respondent/disciplinary authority to give go into the merits of the report of the Enquiry Officer, to give findings with regard to the charges and then come to aconclusion before imposing any punishment on the appellant. Sincethe punishment imposed on the appellant by the respondent are not major punishments, the learned single Judge did not go into the merits of the orders passed by the respondent. Therefore, the learned single Judge confirmed the orders of the respondent.

Since we are of the considered view that the respondent has not applied his mind and has not given any independent finding with regard to the report submitted by the Enquiry Officer regarding the charges framed against the appellant, the orders of the respondent are liable to be set aside. Therefore, the impugned orders dated 23.3.2004 and 28.6.2005 passed by the respondent are set aside. In view of the same, the common order of the learned single Judge passed in W.P.Nos.19937 of 2004 and 24585of 2007 is also set aside.