V.M. Sivanandam v. The Tamil Nadu Slum Clearance Board, rep. by its Chairman & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 13-8-2008CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.15752 of 2008 and M.P.No.1 of 2008W.P.No.15753 of 2008 and M.P.No.1 of 2008V.M. Sivanandam...Petitioner in both writ petitionsVs.1.The Tamil Nadu Slum Clearance Board,rep.by its Chairman,No.5, Kamarajar Salai,Chennai - 5.... 1st Respondent in W.P.15752/20082.ChairmanTamil Nadu Slum Clearance Board,No.5, Kamarajar Salai,Chennai - 5... 2nd Respondent in W.P.15752/2008 1st Respondent in W.P.15753/20083.Managing Director,Tamil Nadu Slum Clearance Board,No.5, Kamarajar Salai,Chennai - 5.... 3rd Respondent in W.P.15752/20082nd Respondent in W.P.15753/20084.A.Nedunchezhiyan...4th Respondent in W.P.15752/20083rd Respondent in W.P.15753/2008Prayer in W.P.No.15752/2008: This writ petition is filed underArticle 226 of Constitution of India, praying this Court to issuea writ of Certiorarified Mandamus calling for the records of thesecond respondent issued in Na.Ka.No.A1/12479/2007, dated31.12.2007 and the proceedings of the first respondent issued inAppeal in Na.Ka.No.A1/12479/2007, dated 30.5.2008 and quash thesame as illegal and direct the respondents to determine the payand retirement benefits of the petitioner without reference to theimpugned punishment.Prayer in W.P.No.15753 of 2008:This writ petition is filedunder Article 226 of Constitution of India, praying this Court toissue a writ of Certiorarified Mandamus calling for the records ofthe first respondent in Na.Ka.No.AI/12479/2007, dated 2.4.2008 and https://hcservices.ecourts.gov.in/hcservices/ quash the same as illegal and direct the respondents to determinethe pay and retirement benefits of the petitioner withoutreference to the impugned punishment.For Petitioner :Mr.S.VadiveluFor Respondents:Mr.Y.BhuvaneshkumarCOMMON ORDERPrayer in W.P.No.15752 of 2008 is to quash the order passedby the second respondent dated 31.12.2007, confirmed by the firstrespondent by order dated 30.5.2008 and to direct the respondentsto determine the pay and terminal benefits of the petitionerwithout reference to the punishment imposed.2.In W.P.No.15753 of 2008, petitioner has prayed to quashthe order dated 2.4.2008 passed by the first respondent whereinpetitioner was imposed with the punishment of Censure and treatedthe interim period of suspension from 10.7.2007 to 13.12.2007 aspunishment.3.The case of the petitioner is that he entered into theservice of the Tamil Nadu Slum Clearance Board in the year 1972and he was promoted as Divisional Accountant in the year 1991 andcontinued in the said post till he retired from service on31.12.2007. On 8.2.2007, this Court in Crl.O.P.No.8189 of 2006,W.P.Nos.6841 of 2006 and 7139 of 2006 as well as in ContemptApplication No.374 of 2006, passed an order to give Cable T.V.Connection for Slum Clearance Board residential houses at OkkiamThorapakkam. Petitioner being the Divisional Accountant worked inthe Divisional Office did not receive the copy of the Order as hisjob did not relate to the conduct of public auction for Cable T.V.connection, which according to the petitioner is the function ofthe 4th respondent viz., the Secretary of Slum Clearance Board.By order dated 17.7.2007, petitioner was placed under suspensionon the alleged ground that he has not complied with the directionissued in Contempt Application No.374 of 2006. On 17.8.2007, acharge memo was issued by the second respondent framed under Rule8(2) of the Tamil Nadu Slum Clearance Board (Discipline andAppeal) Rules, 1972, alleging that the petitioner did notimplement the order of the High Court in connection with the CableT.V. Connection for the residential houses bearing R.C.Nos.9201 to9500 at Okkiyam-Thorapakkam and the amount of Rs.24,000/- wasreceived as rent on 19.4.2007, which was not consistent with theHigh Court order. As the petitioner denied the charge, an enquirywas conducted on 12.12.2007. In the Enquiry Officer's reportfinding was given to the effect that all the four charges were not https://hcservices.ecourts.gov.in/hcservices/ proved against the petitioner. On 14.12.2007, third respondentenclosed a copy of the Enquiry Officer's report dated 12.12.2007and requested the petitioner to submit furtherrepresentation/remarks. On receipt of the said notice on18.12.2007, petitioner sent a reply stating that as the EnquiryOfficer found all the charges not proved, further action may bedropped. By order dated 31.12.2007 petitioner was allowed toretire. However, in the very same order, a punishment of'Censure' was imposed stating that the second respondent hasexamined the report of the Enquiry Officer and the same was notacceptable and the charges are proved. The appeal filed by thepetitioner against the order before the first respondent was alsodismissed on 30.5.2008. Hence the petitioner challenged the saidorders as stated supra in W.P.No.15752 of 2008. By order dated2.4.2008, the first respondent treated the period of interimsuspension from 10.7.2007 to 13.12.2007 (157 days) also as theperiod of punishment. The said order is also challenged inW.P.No.15753 of 2008.4.The learned counsel for the petitioner submitted thatthe Enquiry Officer having found that the petitioner was notguilty of the charges levelled against him and having directed thepetitioner to submit his remarks for the said Enquiry Officer'sreport on 14.12.2007, without stating anything about thedisagreement with regard to the Enquiry Officer's finding and thepetitioner having given his remarks to drop the charges based onthe Enquiry Officer's report and also to treat the period ofsuspension as duty period, the respondents, without communicatingany differing view, have chosen to impose the punishment ofcensure and the same is not only against the principles of naturaljustice, but also against the decisions of the Supreme Courtreported in JT 1998 (5) SC 548 (Punjab National Bank and Others v.Sh.Kunj Behari Misra) and JT 2006 (4) SC 376 (Ranjit Singh v.Union of India & Others). The learned counsel further submittedthat having imposed the punishment of censure, again treating theinterim period of suspension as punishment is also unsustainablesince it amounts to double punishment for single charge memo.5.Heard the learned counsel for the respondents, who inturn submitted that even though the Enquiry Officer found thecharges as not proved, after getting remarks from the petitionerwith regard to the Enquiry Officer's Report only a lenientpunishment of censure was awarded, which would not affect thepetitioner who has attained the age of superannuation. Thelearned counsel further submitted that the interim period ofsuspension was treated as punishment of suspension only to denysalary for the above period and the same cannot be treated asdouble punishment. https://hcservices.ecourts.gov.in/hcservices/

6.I have considered the rival submissions of the learnedcounsel appearing for the petitioner as well as respondents.7.The charges levelled against the petitioner are asfollows:"Charge No.1:In the matter of providingCable T.V. Connection for the residentialhouses bearing RC.No.9201 to 9500 at theChennai Okkiyam-Turaipakkam plan area, withulterior motive and for undue enrichment,wantonly failed to implement the Madras HighCourt order.Charge No.2:Acted in contravention to theorder of the Madras High Court and receivedRs.24,000/- from one Mr.Umar Farooq bymisrepresenting that the lease period wasrenewed and thereby was instrumental inissuing receipt No.163986.Charge No.3:Intentionally violated theorder of the Madras High Court and recommendedto the Board for renewal of the lease periodin favour of Umar Farooq.Charge No.4:By not performing the duty ofthe Divisional Accountant with due deligence,was responsible for initiation of the contemptproceeding."As per the Enquiry Officer's report dated 12.12.2007, all theabove four charges were found not proved. The said EnquiryOfficer's report was forwarded to the petitioner by the thirdrespondent on 14.12.2007 and requested the petitioner to submithis remarks. Petitionr submitted his remark to the said enquiryOfficer's report on 18.12.2007 and statd that all the chargeslevelled against the petitioner are not proved as per the EnquiryOfficer's report, which clearly establishes the innocence of thepetitioner and ultimately requested to relieve the petitioner fromthe said charges and treat the period of suspension as dutyperiod.8.From the pleadings it is evident that no differing viewwas taken by the disciplinary authority/second respondent andconsequently no explanation was sought for from the petitioner.In the order dated 31.12.2007 the second respondent states thatthe Enquiry Officer's report was not acceptable as the petitionerfailed to take action as per the Court order, the chargeslevelled against the petitioner are proved and taking note of thedate of retirement of the petitioner on 31.12.2007, a lenient viewwas taken and a punishment of 'Censure' is ordered. Petitionerwas also permitted to retire on 31.12.2007. In the order dated https://hcservices.ecourts.gov.in/hcservices/

2.4.2008, the second respondent taking note of the punishmentimposed viz., Censure, ordered to treat the suspension period from10.7.2007 to 13.12.2007 also as punishment. The appeal filedagainst the order imposing the punishment of censure was alsodismissed by the first respondent by resolution No.33/417 dated9.5.2008, which was communicated to the petitioner on 30.5.2008.9.The Tamil Nadu Slum Clearance Board (Discipline andAppeal) Rules, 1972, is the service rule applicable to thepetitioner. In the said Rules it is stated that 'Censure' is oneof the penalty, which can be imposed against a delinquent officer.Since the Enquiry Officer has given a clear finding in favour ofthe petitioner for all the charges and admittedly no differingview was taken by the second respondent before passing theimpugned order and no opportunity was given to the petitionerbefore taking differing view at the time of imposing punishment,definitely the principles of natural justice is violated. Thereasons stated by the second respondent to impose punishment ofcensure and treating the interim period of suspension aspunishment are cryptic and without any valid reasons.10.Similar issue was considered by the Supreme Court in thedecision reported in JT 1998 (5) SC 548 = (1998) 7 SCC 84 (PunjabNational Bank and Others v. Sh.Kunj Behari Misra). In paragraphs16 to 18, the Honourable Supreme Court held as follows:"16. In Karunakar case the question arosewhether after the 42nd Amendment of theConstitution, when the enquiry officer wasother than a disciplinary authority, was thedelinquent employee entitled to a copy of theenquiry report of the enquiry officer beforethe disciplinary authority takes decision onthe question of guilt of the delinquent. Itwas sought to be contended in that case thatas the right to show cause against the penaltyproposed to be levied had been taken away bythe 42nd Amendment, therefore, there was nonecessity to give to the delinquent a copy ofthe enquiry report before the disciplinaryauthority took the final decision as towhether to impose a penalty or not. Explainingthe effect of the 42nd Amendment theConstitution Bench at p.755 observed that:(SCC para 28)“All that has happened after the Forty-second Amendment of the Constitution isto advance the point of time at which therepresentation of the employee against https://hcservices.ecourts.gov.in/hcservices/ the enquiry officer’s report would beconsidered. Now, the disciplinaryauthority has to consider therepresentation of the employee againstthe report before it arrives at itsconclusion with regard to his guilt orinnocence of the charges.”The Court explained that the disciplinaryproceedings break into two stages. The firststage ends when the disciplinary authorityarrives at its conclusions on the basis of theevidence, the enquiry officer’s report and thedelinquent employee’s reply to it. The secondstage begins when the disciplinary authoritydecides to impose penalty on the basis of itsconclusions. It is the second right which wastaken away by the 42nd Amendment but the rightof the charged officer to receive the reportof the enquiry officer was an essential partof the first stage itself. This was expressedby the Court in the following words: (SCCp.754, para 26)“26. The reason why the right to receivethe report of the enquiry officer isconsidered an essential part of thereasonable opportunity at the first stageand also a principle of natural justiceis that the findings recorded by theenquiry officer form an importantmaterial before the disciplinaryauthority which along with the evidenceis taken into consideration by it to cometo its conclusions. It is difficult tosay in advance, to what extent the saidfindings including the punishment, ifany, recommended in the report wouldinfluence the disciplinary authoritywhile drawing its conclusions. Thefindings further might have been recordedwithout considering the relevant evidenceon record, or by misconstruing it orunsupported by it. If such a finding isto be one of the documents to beconsidered by the disciplinary authority,the principles of natural justice requirethat the employee should have a fairopportunity to meet, explain andcontrovert it before he is condemned. It https://hcservices.ecourts.gov.in/hcservices/ is negation of the tenets of justice anda denial of fair opportunity to theemployee to consider the findingsrecorded by a third party like theenquiry officer without giving theemployee an opportunity to reply to it.Although it is true that the disciplinaryauthority is supposed to arrive at itsown findings on the basis of the evidencerecorded in the enquiry, it is alsoequally true that the disciplinaryauthority takes into consideration thefindings recorded by the enquiry officeralong with the evidence on record. In thecircumstances, the findings of theenquiry officer do constitute animportant material before thedisciplinary authority which is likely toinfluence its conclusions. If the enquiryofficer were only to record the evidenceand forward the same to the disciplinaryauthority, that would not constitute anadditional material before thedisciplinary authority of which thedelinquent employee has no knowledge.However, when the enquiry officer goesfurther and records his findings, asstated above, which may or may not bebased on the evidence on record or arecontrary to the same or in ignorance ofit, such findings are an additionalmaterial unknown to the employee but aretaken into consideration by thedisciplinary authority while arriving atits conclusions. Both the dictates of thereasonable opportunity as well as theprinciples of natural justice, therefore,require that before the disciplinaryauthority comes to its own conclusions,the delinquent employee should have anopportunity to reply to the enquiryofficer’s findings. The disciplinaryauthority is then required to considerthe evidence, the report of the enquiryofficer and the representation of theemployee against it.” https://hcservices.ecourts.gov.in/hcservices/

17. These observations are clearly intune with the observations in Bimal KumarPandit case quoted earlier and would beapplicable at the first stage itself. Theaforesaid passages clearly bring out thenecessity of the authority which is to finallyrecord an adverse finding to give a hearing tothe delinquent officer. If the enquiry officerhad given an adverse finding, as per Karunakarcase the first stage required an opportunityto be given to the employee to represent tothe disciplinary authority, even when anearlier opportunity had been granted to themby the enquiry officer. It will not stand toreason that when the finding in favour of thedelinquent officers is proposed to beoverturned by the disciplinary authority thenno opportunity should be granted. The firststage of the enquiry is not completed till thedisciplinary authority has recorded itsfindings. The principles of natural justicewould demand that the authority which proposesto decide against the delinquent officer mustgive him a hearing. When the enquiring officerholds the charges to be proved, then thatreport has to be given to the delinquentofficer who can make a representation beforethe disciplinary authority takes furtheraction which may be prejudicial to thedelinquent officer. When, like in the presentcase, the enquiry report is in favour of thedelinquent officer but the disciplinaryauthority proposes to differ with suchconclusions, then that authority which isdeciding against the delinquent officer mustgive him an opportunity of being heard forotherwise he would be condemned unheard. Indepartmental proceedings, what is of ultimateimportance is the finding of the disciplinaryauthority.18. Under Regulation 6, the enquiryproceedings can be conducted either by anenquiry officer or by the disciplinaryauthority itself. When the enquiry isconducted by the enquiry officer, his reportis not final or conclusive and thedisciplinary proceedings do not stand https://hcservices.ecourts.gov.in/hcservices/ concluded. The disciplinary proceedings standconcluded with the decision of thedisciplinary authority. It is the disciplinaryauthority which can impose the penalty and notthe enquiry officer. Where the disciplinaryauthority itself holds an enquiry, anopportunity of hearing has to be granted byhim. When the disciplinary authority differswith the view of the enquiry officer andproposes to come to a different conclusion,there is no reason as to why an opportunity ofhearing should not be granted. It will be mostunfair and iniquitous that where the chargedofficers succeed before the enquiry officer,they are deprived of representing to thedisciplinary authority before that authoritydiffers with the enquiry officer’s report and,while recording a finding of guilt, imposespunishment on the officer. In our opinion, inany such situation, the charged officer musthave an opportunity to represent before thedisciplinary authority before final findingson the charges are recorded and punishmentimposed. This is required to be done as a partof the first stage of enquiry as explained inKarunakar case."In the subsequent decision reported in JT 2006 (4) SC 376 = (2006)4 SCC 153 (Ranjit Singh v. Union of India & Others) also theSupreme Court took similar view. In paragraphs 20 to 22 theSupreme Court held as follows:"20. In Punjab National Bank v. KunjBehari Misra this Court has clearly held thatthe principles of natural justice are requiredto be complied with by the disciplinaryauthority in the event he intends to differwith the findings of the enquiry officerobserving: (SCC p.97, para 19)“19. The result of the aforesaiddiscussion would be that the principlesof natural justice have to be read intoRegulation 7(2). As a result thereof,whenever the disciplinary authoritydisagrees with the enquiry authority onany article of charge, then before itrecords its own findings on such charge,it must record its tentative reasons forsuch disagreement and give to thedelinquent officer an opportunity to https://hcservices.ecourts.gov.in/hcservices/ represent before it records its findings.The report of the enquiry officercontaining its findings will have to beconveyed and the delinquent officer willhave an opportunity to persuade thedisciplinary authority to accept thefavourable conclusion of the enquiryofficer. The principles of naturaljustice, as we have already observed,require the authority which has to take afinal decision and can impose a penalty,to give an opportunity to the officercharged of misconduct to file arepresentation before the disciplinaryauthority records its findings on thecharges framed against the officer.”21. The said decision has been followedby this Court in State Bank of India v. K.P.Narayanan Kutty wherein it was clearly heldthat in such an event the prejudice doctrinewould not be applicable, stating: (SCC pp.454-55, para 6)“6. … In para 19 of the judgment inPunjab National Bank case2 extractedabove, when it is clearly stated that theprinciples of natural justice have to beread into Regulation 7(2) [Rule 50(3)(ii)of the State Bank of India (SupervisingStaff) Service Rules, is identical interms applicable to the present case] andthe delinquent officer will have to begiven an opportunity to persuade thedisciplinary authority to accept thefavourable conclusion of the enquiryofficer, we find it difficult to acceptthe contention advanced on behalf of theappellants that unless it is shown thatsome prejudice was caused to therespondent, the order of dismissal couldnot be set aside by the High Court.”22. In view of the aforementioneddecisions of this Court, it is now wellsettled that the principles of natural justicewere required to be complied with by thedisciplinary authority. He was also requiredto apply his mind to the materials on record.The enquiry officer arrived at findings which https://hcservices.ecourts.gov.in/hcservices/ were in favour of the appellant. Such findingswere required (sic sought) to be overturned bythe disciplinary authority. It is in that viewof the matter, the power sought to beexercised by the disciplinary authority,although not as that of an AppellateAuthority, but is akin thereto. The inquiryreport was in favour of the appellant but thedisciplinary authority proposed to differ withsuch conclusions and, thus, apart fromcomplying with the principles of naturaljustice it was obligatory on his part, in theabsence of any show-cause filed by theappellant, to analyse the materials on recordafresh. It was all the more necessary becauseeven CBI, after a thorough investigation inthe matter, did not find any case against theappellant and thus, filed a closure report. Itis, therefore, not a case where the appellantwas exonerated by a criminal court after afull-fledged trial by giving benefit of doubt.It was also not a case where the appellantcould be held guilty in the disciplinaryproceedings applying the standard of proof aspreponderance of the probability as contrastedwith the standard of proof in a criminal triali.e. proof beyond all reasonable doubt. When afinal form was filed in favour of theappellant, CBI even did not find a prima faciecase against him. The disciplinary authorityin the aforementioned peculiar situation wasobligated to apply its mind on the materialsbrought on record by the parties in the lightof the findings arrived at by the inquiryofficer. It should not have relied only on thereasons disclosed by him in his show-causenotice which, it will bear repetition tostate, was only tentative in nature. As theAppellate Authority in arriving at itsfinding, laid emphasis on the fact that theappellant has not filed any objection to theshow-cause notice; ordinarily, this Courtwould not have exercised its power of judicialreview in such a matter, but the case in handappears to be an exceptional one as theappellant was exonerated by the inquiryofficer. He filed a show-cause but, albeitafter some time the said cause was availablewith the disciplinary authority before he https://hcservices.ecourts.gov.in/hcservices/ issued the order of dismissal. Even if he hadprepared the order of dismissal, he could haveconsidered the show-cause as he did not leavehis office by then. The expression“communication” in respect of an order ofdismissal or removal from service would meanthat the same is served upon the delinquentofficer. (See State of Punjab v. Amar SinghHarika.)"11.In the case on hand, as admittedly no differing view wascommunicated and explanation sought for from the petitioner, theaction of the second respondent in imposing the punishment ofcensure, which is stated as a penalty under the Tamil Nadu SlumClearance Board (Discipline and Appeal) Rules, 1972, and based onthe said censure treating the period of interim suspension aspunishment to deny the benefits due to the petitioner, cannot besustained. 12.Consequently the impugned orders are set aside. Thewrit petitions are allowed with a direction to the respondents todetermine the pay and terminal benefits of the petitioner and paythe same within six weeks from the date of receipt of copy of thisorder. No costs. Connected miscellaneous petitions are closed.VrSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Chairman, Tamil Nadu Slum Clearance Board,No.5, Kamarajar Salai, Chennai - 5.2.The Managing Director, Tamil Nadu Slum Clearance Board,No.5, Kamarajar Salai, Chennai – 5.+ 4 ccs to Mr. Y. Bhuvanesh kumar, Advocate SR.Nos.42712, 44820,42711, 44819 + 2 ccs to Mr. S. Vadivelu, Advocate SR No. 42719 Order in W.P.Nos.15752 & 15753/2008 SSN(CO)SR/18.8.2008