P.Thangaiah v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.31218 of 2006P.Thangaiah ..PetitionerVs.1. State of Tamil Nadu represented by Secretary to Government, Agriculture Department, Fort St. George, Chennai-600 009.2. The Executive Engineer(A.E) Command Area Development Programme, Parambikulam-Aliyar Project, Udamalpet ..Respondents This writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to set aside the order No.G.O.(3D) No.21,Agriculture Department, dated 28.2.1997 passed by the firstrespondent and to direct the respondents to refund the sums payableto the applicant consequent upon the imposition of the said penaltyand to direct the respondents to promote the petitioner to theselection grade w.e.f. 01.01.1993 with all consequential benefitsincluding arrears of pay and allowances with interest @ 12% p.a. Tillthe date of his superannuation and to refix the pension of thepetitioner by ignoring the abovesaid penalty and taking into accounthis pay in the selection grade and to pay all consequent arrears ofpension, gratuity and other benefits with interest @ 12% p.a. (as perthe amended prayer vide court order, dated 6.4.2009 in M.P.No.1 of2007).For Petitioner : Mr.P.V.S.GiridharFor Respondents: Mr.P.Gurunathan, GA https://hcservices.ecourts.gov.in/hcservices/ ORDERHeard both sides.2.The petitioner has filed O.A.No.6762 of 1997, seeking tochallenge the order of the first respondent, dated 28.2.1997 in G.O.(3D) No.21, Agriculture Department, wherein by which the petitionerwas imposed with the punishment of stoppage of increment for 3 yearswith cumulative effect. 3.On notice from the Tribunal, the first respondent has filed adetailed reply affidavit, dated 29.01.1998. In view of the abolitionof the Tribunal, the matter stood transferred to this court and wasrenumbered as W.P.No.31218 of 2006. At the relevant time, thepetitioner was working as an Assistant Executive Engineer, TankIrrigation and Modernisation Circle, Virudhunagar. Even at the timeof filing of the O.A., he was 55 years old and had reached the age ofsuperannuation during the year 2000 and had retired from service. 4.The petitioner was placed under suspension by an order, dated22.10.1987. He was also given a charge memorandum under Rule 17(b) ofthe TNCS (D&A) Rules. The major allegation against the petitioner wasthat the quality of on farm development (OFD) executed by him waspoor and there was a misuse of cement supply for the use in thescheme work at Kunda Dam subdivision. An enquiry was conductedagainst the petitioner by the Executive Engineer (AgricultureEngineering) CAD, Parambikulam Azhiyar Project, Udumalpet. Thepetitioner was furnished with a copy of the enquiry report. He gave adetailed explanation, dated 18.03.1991, denying the charges. He alsoraised several points regarding the infirmities in the departmentalenquiry conducted against him. 5.On receipt of the explanation from the petitioner, the firstrespondent State consulted the TNPSC. The TNPSC gave its advice,dated 11.11.1995. On the basis of the advice and accepting thefindings of the enquiry officer, the Government imposed thepunishment against the petitioner as set out above. During thependency of the O.A., the petitioner did not have the benefit of anyinterim order. The respondents also circulated the original recordsrelating to the case of the petitioner. 6.Mr.P.V.S. Giridhar, the learned counsel for the petitionerraised the following contentions:a)The enquiry officer conducted the enquiry in abiased manner. He also acted as a Judge and Prosecutor. Hefurther examined and cross examined the petitioner. https://hcservices.ecourts.gov.in/hcservices/ b)The documents filed in the enquiry were not markedthrough any witnesses and the petitioner was not givencopies of the documents. He was also not permitted toinspect those documents. c)The petitioner had examined 4 witnesses in hisdefence, but they were strangely shown as witnesses forthe department. d)The first respondent did not apply his mindindependently, but mechanically accepted the same. 7.Per contra, in the reply affidavit, it is stated that theenquiry officer had acted in terms of the guidelines prescribedunder the handbook on disciplinary procedures. It was also statedthat the petitioner did not ask for documents in terms of thequestionnaire furnished to him. It was admitted that four witnesseswere present and the petitioner had examined them in the enquiry. Itwas also stated that the respondent State had applied its mind beforepassing the final order of penalty. 8.In support of his submissions, the learned counsel for thepetitioner relied upon the judgment of the Supreme Court in BareillyElectricity Supply Co. Ltd. v. Workmen and others reported in (1971)2 SCC 617. He placed reliance upon the following passage found inpara 14, which is as follows:"14. ...But the application of principal of naturaljustice does not imply that what is not evidence can beacted upon. On the other hand what it means is that nomaterials can be relied upon to establish a contestedfact which are not spoken to by persons who are competentto speak about them and are subjected to cross-examination by the party against whom they are sought tobe used. When a document is produced in a Court or aTribunal the questions that naturally arise is, is it agenuine document, what are its contents and are thestatements contained therein true. When the appellantproduced the balance-sheet and profit and loss account ofthe company, it does not by its mere production amount toa proof of it or of the truth of the entries therein. Ifthese entries are challenged the appellant must proveeach of such entries by producing the books and speakingfrom the entries made therein. If a letter or otherdocument is produced to establish some fact which isrelevant to the enquiry the writer must be produced orhis affidavit in respect thereof be filed and opportunityafforded to the opposite party who challenges this fact.This is both in accord with principles of natural justice https://hcservices.ecourts.gov.in/hcservices/ as also according to the procedure under Order 19 of theCivil Procedure Code and the Evidence Act both of whichincorporate these general principles."9.The learned counsel also stated that principles of naturaljustice requires that he should be given the copies of the documentsrelied on by the department and that will vitiate the enquiry. Forthis purpose, he placed reliance of the judgment of the Supreme Courtin State of Madhya Pradesh v. Chintaman Sadashiva Vaishampayanreported in AIR 1961 SC 1623. "There is no dispute that under Article 311(2) therespondent is entitled to have such a reasonableopportunity. A proper opportunity must be afforded to himat the stage of the enquiry after the charge is suppliedto him as well as at the second stage when punishment isabout to be imposed on him. If the first enquiry wasmaterially defective and denied the respondent anopportunity to prove his case it is impossible to holdthat a reasonable opportunity guaranteed to a publicservant by Article 311(2) had been afforded to therespondent in the present case."10.The counsel also submitted that the enquiry officer himselfrecommended strongly the punishment to be imposed on the petitioner.But, a perusal of the report does not show any such recommendationwas made by the disciplinary authority. Hence this submission has norelevance.11.The learned counsel placed reliance upon the judgment of theSupreme Court in State of Uttaranchal and others v. Kharak Singhreported in (2008) 8 SCC 236 for the purpose of proving that thiscourt has got power to judicially review a disciplinary proceedingswhich was conducted contrary to the principles of natural justice.For this purpose, he placed reliance upon the following passagesfound in paragraphs 19 and 20 of the said judgment:"19. As pointed out above, awarding appropriatepunishment is the exclusive jurisdiction of thepunishing/disciplinary authority and it depends upon thenature and gravity of the proved charge/charges and otherattended circumstances. It is clear from the materials,the officer, who inspected and noted the shortfall oftrees, himself conducted the enquiry, arrived at aconclusion holding the charges proved and also stronglyrecommended severe punishment of dismissal from service.The entire action and the course adopted by the enquiryofficer cannot be accepted and is contrary to the well-known principles enunciated by this Court. https://hcservices.ecourts.gov.in/hcservices/

20. A reading of the enquiry report also shows that therespondent herein was not furnished with the requireddocuments. The Department’s witnesses were not examinedin his presence. Though the respondent who was the writpetitioner specifically stated so in the affidavit beforethe High Court in the writ proceedings, those avermentswere specifically controverted in the reply-affidavitfiled by the Department. Mere denial for the sake ofdenial is not an answer to the specific allegations madein the affidavit. Likewise, there is no evidence to showthat after submission of the report by the enquiryofficer to the disciplinary authority, the respondentherein was furnished with the copy of the said reportalong with all the relied upon documents. When all theseinfirmities were specifically pleaded and brought to thenotice of the appellate authority (i.e. ForestConservator), he rejected the same but has not pointedout the relevant materials from the records of theenquiry officer and disciplinary authority to support hisdecision. Hence, the appellate authority has alsocommitted an error in dismissing the appeal of therespondent."12.The learned counsel contended that since the first respondentconsulted the TNPSC and called for its advice and accepted the viewsof the TNPSC, he ought to have been given the report before itsacceptance and not after passing the order. Therefore, he placedreliance upon the judgment of the Supreme Court in Yoginath D.Bagde v. State of Maharashtra and another reported in (1999) 7 SCC739. He also referred to the following passages found in paras 28, 29and 31:"28. In view of the provisions contained in thestatutory rule extracted above, it is open to thedisciplinary authority either to agree with the findingsrecorded by the enquiring authority or disagree withthose findings. If it does not agree with the findings ofthe enquiring authority, it may record its own findings.Where the enquiring authority has found the delinquentofficer guilty of the charges framed against him and thedisciplinary authority agrees with those findings, therewould arise no difficulty. So also, if the enquiringauthority has held the charges proved, but thedisciplinary authority disagrees and records a findingthat the charges were not established, there would ariseno difficulty. Difficulties have arisen in all those casesin which the enquiring authority has recorded a positivefinding that the charges were not established and the https://hcservices.ecourts.gov.in/hcservices/ delinquent officer was recommended to be exonerated, butthe disciplinary authority disagreed with those findingsand recorded its own findings that the charges wereestablished and the delinquent officer was liable to bepunished. This difficulty relates to the question ofgiving an opportunity of hearing to the delinquent officerat that stage. Such an opportunity may either be providedspecifically by the rules made under Article 309 of theConstitution or the disciplinary authority may, of itsown, provide such an opportunity. Where the rules are inthis regard silent and the disciplinary authority alsodoes not give an opportunity of hearing to the delinquentofficer and records findings different from those of theenquiring authority that the charges were established, “anopportunity of hearing” may have to be read into the ruleby which the procedure for dealing with the enquiringauthority’s report is provided principally because itwould be contrary to the principles of natural justice ifa delinquent officer, who has already been held to be “notguilty” by the enquiring authority, is found “guilty”without being afforded an opportunity of hearing on thebasis of the same evidence and material on which a findingof “not guilty” has already been recorded.29. We have already extracted Rule 9(2) of the MaharashtraCivil Services (Discipline and Appeal) Rules, 1979 whichenables the disciplinary authority to disagree with thefindings of the enquiring authority on any article ofcharge. The only requirement is that it shall record itsreasoning for such disagreement. The rule does notspecifically provide that before recording its ownfindings, the disciplinary authority will give anopportunity of hearing to a delinquent officer. But therequirement of “hearing” in consonance with the principlesof natural justice even at that stage has to be read intoRule 9(2) and it has to be held that before thedisciplinary authority finally disagrees with the findingsof the enquiring authority, it would give an opportunityof hearing to the delinquent officer so that he may havethe opportunity to indicate that the findings recorded bythe enquiring authority do not suffer from any error andthat there was no occasion to take a different view. Thedisciplinary authority, at the same time, has tocommunicate to the delinquent officer the “TENTATIVE”reasons for disagreeing with the findings of the enquiringauthority so that the delinquent officer may furtherindicate that the reasons on the basis of which thedisciplinary authority proposes to disagree with thefindings recorded by the enquiring authority are not https://hcservices.ecourts.gov.in/hcservices/ germane and the finding of “not guilty” already recordedby the enquiring authority was not liable to be interferedwith......31. In view of the above, a delinquent employee has theright of hearing not only during the enquiry proceedingsconducted by the enquiry officer into the charges levelledagainst him but also at the stage at which those findingsare considered by the disciplinary authority and thelatter, namely, the disciplinary authority forms atentative opinion that it does not agree with the findingsrecorded by the enquiry officer. If the findings recordedby the enquiry officer are in favour of the delinquent andit has been held that the charges are not proved, it isall the more necessary to give an opportunity of hearingto the delinquent employee before reversing thosefindings. The formation of opinion should be tentative andnot final. It is at this stage that the delinquentemployee should be given an opportunity of hearing afterhe is informed of the reasons on the basis of which thedisciplinary authority has proposed to disagree with thefindings of the enquiry officer. This is in consonancewith the requirement of Article 311(2) of the Constitutionas it provides that a person shall not be dismissed orremoved or reduced in rank except after an enquiry inwhich he has been informed of the charges against him andgiven a reasonable opportunity of being heard in respectof those charges. So long as a final decision is not takenin the matter, the enquiry shall be deemed to be pending.Mere submission of findings to the disciplinary authoritydoes not bring about the closure of the enquiryproceedings. The enquiry proceedings would come to an endonly when the findings have been considered by thedisciplinary authority and the charges are either held tobe not proved or found to be proved and in that eventpunishment is inflicted upon the delinquent. That beingso, the “right to be heard” would be available to thedelinquent up to the final stage. This right being aconstitutional right of the employee cannot be taken awayby any legislative enactment or service rule includingrules made under Article 309 of the Constitution."13.With reference to the last submission made by the learnedcounsel, it was stated in the reply affidavit that the Government hadindependently come to the conclusion holding the petitioner guiltyand there was no requirement for furnishing the copy of the viewsobtained by the TNPSC. This stand of the respondent is well meritedand is in tune with Article 320(3) of the Constitution. https://hcservices.ecourts.gov.in/hcservices/

14.The Supreme Court had in more than one occasion interpretedthe scope of Article 320(3) of the Constitution. It is not necessaryto multiply the citations. It is suffice if a reference is made tothe judgment in Ram Gopal Chaturvedi v. State of M.P., (1969) 2 SCC240. Para 7 of the said order reads as follows:"7. It was argued that the impugned order wasinvalid as it was passed without consulting the StatePublic Service Commission under AAticle 320(3)(c) of theConstitution. There is no merit in this contention. Thecase of State of U.P. v. M.L. Srivastava1 decided that theprovisions of Article 320(3)(c) were not mandatory anddid not confer any rights on the public servant and thatthe absence of consultation with the State Public ServiceCommission did not afford him a cause of action.15.However, the argument of the learned counsel for thepetitioner regarding the non supply of the documents and the nonexamination of the witnesses in support of the documents meritsacceptance. Further, the State Government also did not give anyreasons while accepting the report of the enquiry officer. 16.In the light of the above factual matrix as well as the legalprecedents referred to above, the writ petition is entitled tosucceed and accordingly, the writ petition is allowed. The impugnedorder of penalty imposed on the petitioner is set aside. Since thepetitioner had already retired from service, the respondents aredirected to restore the increments available to the petitioner andcalculate the terminal benefits payable to the petitioneraccordingly. This exercise shall be carried within a period of 12weeks from the date of receipt of copy of this order. However, therewill be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarvvk https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government, State of Tamil Nadu Agriculture Department, Fort St. George, Chennai-600 009.2. The Executive Engineer(A.E) Command Area Development Programme, Parambikulam-Aliyar Project, Udamalpet. W.P.NO.31218 OF 2006MBS (CO)GSK 11.06.2009.