S.Subramanian v. The Additional Director General of Police-cum-Commissioner of Police, Chenai City

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.35028 of 2006S.Subramanian.. Petitioner Vs.The Additional Director General of Police-cum-Commissioner of Police,Chenai City.. Respondent This writ petition has been preferred under Article 226 ofthe Constitution of India praying for the issue of a writ ofcertiorari to call for the records on the file of the respondentherein in connection with the order passed by him in hisproceedings P.R.22/96 dated 16.9.97 and to quash the same. For Petitioner: Mr.AyangaraprabhuFor Respondent: Mr.P.Gurunathan, GAORDERThe petitioner has filed O.A.No.8219 of 1997, seeking tochallenge an order dated 16.09.1997 of the respondent. In view ofthe abolition of the Tribunal, the matter stood transferred to thiscourt and was renumbered as W.P.No.35028 of 2006.2.By the impugned order, dated 16.09.1997, the petitionerwas imposed with a punishment of reduction in the time scale of payby two stages for two years without cumulative effect. Before theTribunal, the petitioner did not have the benefit of any interimorder. Even at the time of filing of the O.A., the petitioner was50 years old and he would have reached the age of superannuationduring the year 2005. 3.The charge against the petitioner was that when anaccused was brought before the Chief Metropolitan MagistrateCourt, Egmore, he did not provide adequate bandobust, whichresulted in one accused by name Vijayakumar was murdered in the10th Metropolitan Magistrate Court premises itself and this was dueto the neglect of duty by the petitioner. The Deputy Commissionerof Police at Guindy was directed to conduct an oral enquiry. TheEnquiry Officer gave a report of enquiry holding that the chargeagainst the petitioner was not proved. https://hcservices.ecourts.gov.in/hcservices/

4.However, the respondent, by his proceedings, dated 2.7.97disagreed with the Enquiry report and held that the charge againstthe petitioner was proved. Therefore, after holding that thepetitioner was guilty of the charges, in para 4 of the notice,dated 2.7.97, he gave the following direction to the petitioner:"4.It is proposed to inflict a punishmentcommensurate to the gravity of the delinquencies he hascommitted. He is therefore directed to Show Cause as towhy the punishment should not be inflicted on him. Hisexplanation should reach this office within 15 days fromthe date of receipt of this Show Cause Notice, failingwhich it will be construed that he has nothing to offeron his defence and orders will be passed on merits."After the petitioner gave his explanation, the respondent by hisorder dated 16.9.97, imposed the punishment, as noted above.5.The only contention raised by the counsel for thepetitioner was that before disagreement with the enquiry report,the petitioner was not given any notice. The only notice given tohim was on the proposed penalty, which was not contemplated underthe Rules. Having made up his mind on the minutes of the enquiryreport, the notice given to the petitioner was an empty formality. 6.In support of the above proposition, reliance was placedupon the decision of the Supreme Court in Lav Nigam v. Chairman &MD, ITI Ltd. reported in (2006) 9 SCC 440. A reference was made tothe following passages found in paragraphs 9 to 14, which are asfollows:"9. Challenging the orders of the respondentauthorities the appellant filed a writ petition beforethe High Court. The appellant specifically raised theissue that the disciplinary authority was obliged togive a separate show-cause notice if the disciplinaryauthority differed with the inquiry officer. The HighCourt also held that there was no need to give twoseparate show-cause notices one before the disciplinaryauthority found against the employee while differingwith the view of the inquiry officer, and anotheragainst the proposed punishment. It was further heldthat the two notices could be combined in one. The writpetition was accordingly dismissed. 10. The conclusion of the High Court wascontrary to the consistent view taken by this Courtthat in case the disciplinary authority differs withthe view taken by the inquiry officer, he is bound togive a notice setting out his tentative conclusions tothe appellant. It is only after hearing the appellantthat the disciplinary authority would at all arrive ata final finding of guilt. Thereafter, the employeewould again have to be served with a notice relating tothe punishment proposed. https://hcservices.ecourts.gov.in/hcservices/

11. In Punjab National Bank v. Kunj BehariMisra1 a Bench of this Court considered Regulation 7(2)of the Punjab National Bank Officer Employees’(Discipline and Appeal) Regulations, 1977. TheRegulation itself did not provide for the giving of anynotice before the disciplinary authority differed withthe view of the enquiry officer. This Court held: (SCCp.97, para 19) “The result of the aforesaid discussion wouldbe that the principles of natural justice have to beread into Regulation 7(2). As a result thereof,whenever the disciplinary authority disagrees with theenquiry authority on any article of charge, then beforeit records its own findings on such charge, it mustrecord its tentative reasons for such disagreement andgive to the delinquent officer an opportunity torepresent before it records its findings. The report ofthe enquiry officer containing its findings will haveto be conveyed and the delinquent officer will have anopportunity to persuade the disciplinary authority toaccept the favourable conclusion of the enquiryofficer. The principles of natural justice, as we havealready observed, require the authority which has totake a final decision and can impose a penalty, to givean opportunity to the officer charged of misconduct tofile a representation before the disciplinary authorityrecords its findings on the charges framed against theofficer.”12. This view has been reiterated in YoginathD. Bagde v. State of Maharashtra. In this case alsoRule 9(2) of the Maharashtra Civil Services (Disciplineand Appeal) Rules, 1979 did not specifically providefor a disciplinary authority to give an opportunity ofhearing to the delinquent officer before differing withthe view of the enquiry officer. The Court said: (SCCp.758, para 29) “But the requirement of ‘hearing’ in consonance withthe principles of natural justice even at that stagehas to be read into Rule 9(2) and it has to be heldthat before the disciplinary authority finallydisagrees with the findings of the enquiring authority,it would give an opportunity of hearing to thedelinquent officer so that he may have the opportunityto indicate that the findings recorded by the enquiringauthority do not suffer from any error and that therewas 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 theenquiring authority so that the delinquent officer mayfurther indicate that the reasons on the basis of whichthe disciplinary authority proposes to disagree with https://hcservices.ecourts.gov.in/hcservices/ the findings recorded by the enquiring authority arenot germane and the finding of ‘not guilty’ alreadyrecorded by the enquiring authority was not liable tobe interfered with.”(See also State Bank of India v. K.P. Narayanan Kutty.)13. We have already quoted the extracts fromthe show-cause notice issued by the disciplinaryauthority. It is clear that no notice at all was givenbefore the disciplinary authority recorded its finalconclusions differing with the finding of fact of theinquiry officer. The notice to show cause was merely ashow-cause against the proposed punishment. In view ofthe long line of authorities, the decision of the HighCourt cannot be sustained. The appeal is accordinglyallowed and the decision of the High Court is setaside. 14. The proceedings may be recommenced from thestage of issuance of a fresh show-cause notice by thedisciplinary authority to the appellant indicating histentative disagreement with the findings of the inquiryofficer."7.The stand taken by the petitioner is well founded. Inthe light of the above, the writ petition will stand allowed.However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkToThe Additional Director General of Police-cum-Commissioner of Police,Chenai City.W.P.NO.35028 OF 2006 RSN(CO)RVL 11.06.2009