CORAMTHE HONOURABLE MR v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.08.2010CORAMTHE HONOURABLE MR.JUSTICE T.RAJAW.P.No.35605 of 2006(O.A.No.7295 of 1999)S.Dayanandam... PetitionerVersus1.State rep. by its Secretary, Finance (T & A-I) Department, Fort St.George, Chennai-9.2.The Commissioner Treasuries & Accounts, Chennai-15.... RespondentsPrayer:Writ petition came to be numbered by transfer of O.A.No.7295 of1999 on the file of the Tamil Nadu Administrative Tribunal praying tocall for the connected records in the issuance of impugned orders inProceedings R.C.43397/93/Q3 dated 11.06.1998 of the 2nd Respondent andquash the same; consequently to direct the Respondents to include hisname in the ensuing panel for A.Os (Accounts Officers) promotewithout further loss of time and thus render justice; withoutprejudice to his claim regarding seniority and attendant benefits andpass such other orders or other reliefs as may deem fit (in view ofapplicant's superannuation on 30.09.1999). For Petitioner: Mr.P.Jayaraman, SC for S.NamasivayamFor Respondents: Mr.S.Gopinathan, AGP ORDERThe petitioner while serving as Assistant Accounts Officer wassubjected to a disciplinary proceeding for three charges. The firstcharge shows that he failed to hand over the charge to his successorbefore relieved on transfer to other place. The second charge showsthat he had not produced statement of expenditure incurred for threePD cheques. The third charge alleges that failure to maintainabsolute integrity on devotion to duty. https://hcservices.ecourts.gov.in/hcservices/

2.In view of the charge memo one and two, immediately afterreceipt of the charge memo, the petitioner submitted hisexplanations. Having not satisfied with the explanation, theDisciplinary Authority appointed an Enquiry Officer. The EnquiryOfficer after giving an opportunity to both the sides came to aconclusion that none of the charges leveled against the petitionerwas proved. The Disciplinary Authority while differing with thefindings of the Enquiry Officer imposed with a punishment of stoppageof increment for three years with cumulative effect. The grievanceof the petitioner herein is that the imposition of punishment withoutissuing proper notice by the Disciplinary Authority clearlymentioning the reasons, for differing with the findings of theEnquiry Officer and without giving sufficient time to submitexplanation not to differ with the findings of the Enquiry Officer isviolation of the principles of natural justice and on that basisprayed for setting aside the impugned order. 3.In support of his submission, the learned Senior Counselappearing for the petitioner relied upon the judgment of the Hon'bleApex Court in Punjab National Bank and others vs. Kunj Behari MisraWith Chief Personnel (Disciplinary Authority), (1998) 7 SCC 84 ,wherein the Hon'ble Apex Court has held that whenever theDisciplinary Authority disagrees with the findings of the enquiringauthority on any article of charge, which is, before it records itsfindings on such charge, it must record its tentative reasons forsuch disagreement and give to the delinquent officer an opportunityto represent before it records its findings. The report of theEnquiry Officer containing its finding will have to be conveyed andthe delinquent officer will have an opportunity to pursuade theDisciplinary Authority to accept the favourable conclusion of theEnquiry Officer. The principles of natural justice require theauthority which has to take a final decision and can impose thepenalty, to give an opportunity to the officer charged of mis-conductto file a representation before the Disciplinary Authority recordingits finding on the charges framed against the petitioner. Since, theabove said principles were not followed in the petitioner's case,while imposing the major punishment, the learned Senior Counselappearing for the petitioner sought for setting aside the impugnedorder by allowing the writ petition on the ground that the petitionersuffered further promotion in view of the punishment imposed by theDisciplinary Authority. 4.Per contra, the learned Additional Government Pleaderappearing for the respondents submits that the Enquiry Officersubmitted his finding holding the petitioner not guilty of all thethree charges. Thereafter, the Disciplinary Authority declined toaccept the findings of the Enquiry Officer. Therefore, a noticedated 11.02.1998 was prepared but the same was not served upon thepetitioner till 10.06.1998. But however, the said differing view ofthe Disciplinary Authority was served upon the petitioner on https://hcservices.ecourts.gov.in/hcservices/

10.06.1998 and personally served upon the petitioner on 10.06.1998.The petitioner also on receipt of the notice dated 11.02.1998 on10.06.1998 gave his further representation requesting theDisciplinary Authority to accept the findings of the Enquiry Officerwithout deviating from the said findings. The Disciplinary Authorityhaving got the authority to deviate from the findings of the EnquiryOfficer by assigning sufficient reason as to why the findings of theEnquiry Officer was not acceptable to the Disciplinary Authority onthe basis of reasoning given for his deviation from the findings ofthe Enquiry Officer imposed with the punishment of stoppage ofincrement for three years with cumulative effect since the procedurefor differing with the findings of the Enquiry Officer have beenfollowed properly. The petitioner cannot be allowed to complain thenon-compliance of the procedure by the Disciplinary Authority forimposition of the impugned punishment. On that basis prayed fordismissal of the writ petition.5.Prima facie, three charges were levelled against thepetitioner, namely, the petitioner failed to handover the charge tohis successor on time before he was transferred to another station,that the petitioner failed to render appropriate accounts for thecheques drawn by him to the number of the training center as adrawing officer and his failure to maintain absolute integrity anddevotion to duty being violative of Rule 20(1) of the Governmentservice conduct rule which are all dismissed by the officer as notestablished against the petitioner. The Disciplinary Authority,after receipt of the Enquiry Officer's finding, though legallyentitled to deviate from the findings of the Enquiry Officer, in lawis bound to give sufficient reasons with sufficient time as to whythe Disciplinary Authority was unable to accept the findings of theEquiry Officer which was in favour of the delinquent officer bydiffering with the findings of the Enquiry Officer must give itstentative reasons for such disagreement by giving to the delinquentofficer a sufficient opportunity to represent his further case beforethe Disciplinary Authority regards its finding. 6.In that process, the report of the Enquiry Officer containingits finding will have to be conveyed and the delinquent officer willhave an opportunity to pursuade the Disciplinary Authority to acceptthe favourable condition of the Enquiry Officer. The principles ofnatural justice require the authority which has to take a finaldecision to give an opportunity to the officer charged of mis-conductto file a representation before the Disciplinary Authority regardingits findings on the charges framed against the officer. At thisjuncture, it will be useful to refer to the case of State of Assam V.Bimal Kumar Pandit (AIR 1963 SC 1612)"..... decided by a Constitution Bench of this Court. Aquestion arose regarding the contents of the second show-cause notice when the Government accepts, rejects or partly https://hcservices.ecourts.gov.in/hcservices/ accepts or partly rejects the findings of the enquiryofficer. Even though that case relates to Article 311(2)before its deletion by the 42nd Amendment, the principlelaid down therein, at p. 10 of the Report, when read alongwith the decision of this Court in Karunakar case willclearly apply here. The Court observed at SCR pp.10-11 asfollows:"We ought, however, to add that if thedismissing authority differs from the findingsrecorded in the enquiry report, it is necessarythat its provisional conclusions in that behalfshould be specified in the second notice. It maybe that the report makes findings in favour of thedelinquent officer, but the dismissing authoritydisagrees with the said findings and proceeds toissue the notice under Article 311(2). In such acase, it would obviously be necessary that thedismissing authority should expressly state thatit differs from the findings recorded in theenquiry report and then indicate the nature of theaction proposed to be taken against the delinquentofficer. Without such an express statement in thenotice, it would be impossible to issue the noticeat all. There may also be cases in which theenquiry report may make findings in favour of thedelinquent officer on some issues and against himon some other issues. That is precisely what hashappened in the present case. If the dismissingauthority accepts all the said findings in theirentirety, it is another matter: but if thedismissing authority accepts the findings recordedagainst the delinquent officer and differs fromsome or all of those recorded in his favour andproceeds to specify the nature of the actionproposed to be taken on its own conclusions, itwould be necessary that the said conclusionsshould be briefly indicated in the notice. Inthis category of cases, the action proposed to betaken would be based not only on the findingsrecorded against the delinquent officer in theenquiry report, but also on the view of thedismissing authority that the other charges notheld proved by the enquiring officer are,according to the dismissing authority proved. Inorder to give the delinquent officer a reasonableopportunity to show cause under Article 311(2), itis essential that the conclusions provisionallyreached by the dismissing authority must, in suchcases, be specified in the notice. But where the https://hcservices.ecourts.gov.in/hcservices/ dismissing authority purports to proceed to issuethe notice against the delinquent officer afteraccepting the enquiry report in its entirety, itcannot be said that it is essential that thedismissing authority must say that it has soaccepted the report. As we have alreadyindicated, it is desirable that even in such casesa statement to that effect should be made. But wedo not think that the words used in Article 311(2)justify the view that the failure to make such astatement amounts to contravention of Article 311(2). In dealing with this point, we must bear inmind the fact that a copy of the enquiry reporthad been enclosed with the notice, and so, readingthe notice in common sense manner, the respondentwould not have found any difficulty in realisingthat the action proposed to be taken against himproceeded on the basis that the appellants hadaccepted the conclusions of the enquiring officerin their entirety.""In view of the judgment of the Hon'ble Apex Court, if the dismissingauthority accepts of the said findings in the entirety, it is anothermatter, but if the dismissing authority accepts findings recordedagainst the delinquent officer and differs from some or of all it isrecorded in his favour and proposed to be taken on its ownconclusion, it would be necessary that the said conclusion should beprovisionally indicated in the notice, inorder to give the delinquentofficer a reasonable opportunity to show cause under article 311(2).It is essential the condition imposed in such cases to specify in thenotice, but, where the dismissing authority purports to issue thenotice against the delinquent officer after accepting the EnquiryOfficer report in its entirety, it cannot be said that it isessential that the Disciplinary Authority must say that it has soaccepted the report. It is desirable that even in such cases astatement to that effect should be made. At this Juncture, a copy ofthe Enquiry report should have been enclosed with the notice. 7.On the other hand, it must be kept in mind the fact that,whenever a Disciplinary Authority disagrees with the findings of theenquiring authority, on any article of charge or all the charges,then before it records its own finding on such charge, it must recordits tentative reasons so far as the disagreement and give to thedelinquent officer, an opportunity to represent before it to recordits finding. Further, the report of the Enquiry Officer containingits findings will have to be conveyed to the delinquent officer andthe delinquent officer will have an opportunity to pursuade theDisciplinary Authority to accept the favourable conclusions reachedby the Enquiry Officer on the charges levelled against the petitionerbecause the principles of natural justice requires the authority https://hcservices.ecourts.gov.in/hcservices/ which has to take a final decision and can impose the penalty, togive an opportunity to the officer charged of mis-conduct to file arepresentation before the Disciplinary Authority regards its findingson the charges framed against the officer by keeping in mind that thecharges levelled against the petitioner having been already found infavour of the delinquent officer on the basis of his earlierrepresentation given by the delinquent officer while dealing with thecharges levelled against him. 8.This view has been reiterated in the case of Yoginath D. BagdeV. State of Maharashtra reported in (1999) 7 SCC 739 wherein whiledealing with Rule 9(2) of the Maharashtra Civil Services (Disciplineand Appeal) Rules, 1979, the Hon'ble Apex Court has ruled that thoughthe above said Rule 9(2) did not specifically provide for aDisciplinary Authority to give an opportunity of hearing to thedelinquent officer before differing in the view of the EnquiryOfficer has held as follows:""But the requirement of 'hearing' in consonancewith the principles of natural justice even atthat stage has to be read into Rule 9(2) and ithas to be held that before the disciplinaryauthority finally disagrees with the findings ofthe enquiring authority, it would give anopportunity of hearing to the delinquent officerso that he may have the opportunity to indicatethat the findings recorded by the enquiringauthority do not suffer from any error and thatthere was no occasion to take a different view.The disciplinary authority, at the same time, hasto communicate to the delinquent officer the'TENTATIVE' reasons for disagreeing with thefindings of the enquiring authority so that thedelinquent officer may further indicate that thereasons on the basis of which the disciplinaryauthority proposes to disagree with the findingsrecorded by the enquiring authority are ntogermane and the finding of 'not guilty' alreadyrecorded by the enquiring authority was not liableto be interfered with.""9.In another judgment given by the Hon'ble Apex Court in thecase of Lav Nigam V. Chairman & MD, ITI Ltd. (2006) 9 SCC 440 theabove said principle was reiterated by making things very clear thatin case the Disciplinary Authority differs with the view taken by theEnquiry Officer, the Disciplinary Authority is bound to give a noticesetting out his tentative conclusions to the delinquent officer. Itis only after hearing the delinquent officer, that the DisciplinaryAuthority would at all arrive at a final finding of guilt. Againthereafter, the employee should be served with a notice relating to https://hcservices.ecourts.gov.in/hcservices/ the punishment proposed. This is to provide reasonable opportunityto the delinquent officer in whose favour, the Enquiry Officer givenfavourable finding dismissing the charges, to indicate with thefindings recorded by the Enquiry Officer do not suffer any error andthere was no occasion to take a different view. 10.It is pertinent to explain the two stages took place in thedisciplinary proceedings. The first stage when the DisciplinaryAuthority arrives at its conclusions on the basis of the evidence,the Enquiry Officer's report and the delinquent employees reply toit. The second stage begins when the Disciplinary Authority decidesto impose penalty on the basis of its conclusion. In the firststage, the delinquent officer is issued with a charge memo callingupon him to submit his explanation on the charges mentioned in thecharge memo by giving reasonable time. If the delinquent officersought for any document based on which document to submit hisexplanation in reference to the charges levelled in the charge memoeither he should be furnished with the soft readable copies of thedocument enabling him to prepare his defence in the form of writtensubmission as well as to equip himself to participate in the enquiryto encounter the prosecution witnesses, presenting officer and theEnquiry Officer. 11.After the submission of the written explanation, he should beofficially intimated for the date, place and time of enquiry andthereafter the Enquiry Officer by giving all reasonable opportunityduring the course of enquiry on concluding the enquiry proceedingsubmits his enquiry report before the Disciplinary Authority. If theEnquiry Officer gives an adverse finding, as per the B.Karunakar casein (1993) 4 SCC 727 it requires an opportunity to be given to theemployee to represent the Disciplinary Authority, even when anearlier opportunity had been granted to them by the Enquiry Officer.It will not stand to reason that when the finding in favour of thedelinquent officer is proposed to be over-turned by the DisciplinaryAuthority then no opportunity should be granted. 12.The first stage of the enquiry is not completed till theDisciplinary Authority has recorded its findings. The principles ofnatural justice would demand that the opportunity which proposes todecide against the delinquent officer must give him a hearing. Whenthe Enquiry Officer holds the charges to be proved, then that reporthas to be given to the delinquent officer who can make arepresentation, before the Disciplinary Authority takes furtheraction which may be prejudicial to the delinquent officer. When,like in the present case, the enquiry report is in favour of thedelinquent officer but the Disciplinary Authority proposes to differwith stage conclusions, it is that authority which has to decideagainst the delinquent officer, must give him an opportunity of beingheard. Lest, the petitioner would be condemned un-heard. The casein departmental proceedings, what is of ultimate importance is, the https://hcservices.ecourts.gov.in/hcservices/ findings of the Disciplinary Authority, when the enquiry is conductedby the Enquiry Officer is neither final nor conclusive and thedisciplinary proceedings stands concluded only with the finaldecision of the Disciplinary Authority. 13.It is the Disciplinary Authority which can impose the penaltybut not the Enquiry Officer. Therefore, when the DisciplinaryAuthority differs with a view of the Enquiry Officer and proposes togo to a different conclusion, there is no reason as to why anopportunity of hearing should not be granted. It will be most unfairto snatch away the benefit of the findings of the Enquiry Officerheld in favour of the petitioner, particularly, when the chargedofficer succeeds before the Enquiry Officer, when he is deprived offurther chance of reading to the Disciplinary Authority before thatauthority differs with Enquiry Officer's report and while recording afinding of guilt, imposes punishment on the officer. In my opinionin any such situation, the charged officer must have an opportunityto represent before the Disciplinary Authority before final findingson the charges are recorded and the punishment imposed which isrequired to be done as a part of the first stage of enquiry asexplained in Karunakar's case. 14.But in the present case, the Disciplinary Authority, thoughthe petitioner succeeded before the Enquiry Officer in disproving thecharges, the Disciplinary Authority after receipt of the favourablefindings submitted by the Enquiry Officer holding the delinquent notguilty of the charges levelled against him failed to give sufficientnotice to the petitioner, while over turning the findings of theEnquiry Officer, imposed a punishment of stoppage of incrementagainst the petitioner on the next day namely 11.06.1998. Infact, nonotice was given before the Disciplinary Authority recorded itsfinal conclusions differing with the findings of the fact of theEnquiry Officer. Further, the Disciplinary Authority has tocommunicate to the delinquent officer, the tentative reasons fordisagreeing with the findings of the enquiring authority, so that,the delinquent officer may further indicate that the reasons on thebasis of which the Disciplinary Authority proposes to disagree withthe findings recorded by the enquiring authority are not germane andthe findings are not guilty already recorded by the enquiry authoritywas not found to be interfered with. 15.In a nutshell, there was a need to give two separate showcause notices. One before the Disciplinary Authority found againstthe delinquent employee while differing with the view of the EnquiryOfficer, and another notice relating to the proposed punishment. Inthe present case, though the notice dated 10.06.1998 was given oneday before the final order dated 11.06.1998 was served, since thepetitioner was not given sufficient time to submit his explanationand the second notice proposing punishment having not been given, theimpugned order imposing punishment is not supported with any legal https://hcservices.ecourts.gov.in/hcservices/ basis. In other words, the two notices also cannot be combined inone. In the present case, though the petitioner was served withinsufficient notice showing the reasons for disagreement of theDisciplinary Authority on the findings of the Enquiry Officer on10.06.1998, giving him 15 days time to submit his further defencestatement, if any, on the disagreement of the Disciplinary Authoritywithin 15 days from the date of receipt of this memo, the petitionerwas served with the above said notice of disagreement on 10.06.1998.A hand written explanation was obtained on the same date on10.06.1998. On the very next day i.e., on 11.06.1998, theDisciplinary Authority imposed the punishment before the completionof the 15 days notice period. 16.Therefore, as rightly contended by the learned Senior Counselappearing for the petitioner, the impugned order imposing thepunishment of stoppage increment for 3 years with cumulative effectby over-turning the findings of the Enquiry Officer was passed on thevery next day before completion of the 15 days time on the groundthat the petitioner submitted his explanation, without giving thesecond notice informing the proposed punishment. As held by the ApexCourt reported in (2006) 9 SCC 440 in the case of Lav Nigam V.Chairman & MD, ITI Ltd., this Court by setting aside the impugnedorder on the ground that the petitioner was condemned before beingheard, allows the writ petition. However, there is no orders as tocost. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarpriTo1. The Secretary, Finance (T & A-I) Department, Fort St.George, Chennai-9.2. The Commissioner Treasuries & Accounts, Chennai-15.1 cc To The Government Pleader, SR.58805W.P.No.35605 of 2006 (O.A.No.7295 of 1999) NSM(CO)sra 14/09/2010