T.Shanmugasundaram.. v. The Commissioner Pollachi Municipality Pollachi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:20.06.2008CORAM:THE HON'BLE MR.JUSTICE K.VENKATARAMANWRIT PETITION NO.26477 OF 2006..T.Shanmugasundaram.. Petitionervs.1.The Commissioner Pollachi Municipality Pollachi.2.The Director of Municipal Administration Chennai... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for issuance of Writ of Certiorari to call for therecords relating to the order of the Ist Respondent dated 24.1.97issued in the Ref No.Na.ka.No.11832/96 C1 and quash the same.For petitioner : Mr.R.Muthukannu for Mrs.K.DhanalakshmiFor respondents: Mr.S.Gopinathan Addl.Govt. Pleader ..ORDERThe petitioner had approached the Tamil Nadu AdministrativeTribunal at Chennai by filing O.A.No.2707 of 1997 challenging theimpugned order dated 24.1.1997 of the first respondent imposingpunishment of stoppage of increment for three years with cumulativeeffect. The said O.A. had been transferred to the file of thisCourt, on abolition of the Tribunal and renumbered as W.P.No.26477 of2006.2. The short facts which are necessary for the disposal of thepresent writ petition are as follows: https://hcservices.ecourts.gov.in/hcservices/ The petitioner started his career in Pollachi Municipality inthe year 1975 and in the year 1992 he was promoted as RevenueAssistant. A charge memo dated 6.11.1996 was issued to him and anenquiry was conducted for the same. The Enquiry Officer seems tohave submitted a report and the first respondent, differing with thereport of the Enquiry Officer, had passed the impugned order dated24.1.1997 imposing punishment of stoppage of increment for threeyears with cumulative effect. Challenging the said punishment, thepetitioner had approached the Tribunal by way of O.A. which has beentransferred to this Court, as referred to above. 3. 4. A reply affidavit had been filed on behalf of the firstrespondent wherein it has been pointed out that due to certainirregularities in the calculation and remittance of the provisionaltax by the petitioner, he was placed under suspension pendingdisciplinary proceedings and subsequently, after perusal of therecords, a charge memo dated 6.11.1996 was served on him dulymentioning the lapses and irregularities and 15 days' time wasgranted to the petitioner for offering his defence statement. TheMunicipal Commissioner appointed the Municipal Health Officer forconducing enquiry and the enquiry was also conducted on 12.12.1996.After thoroughly analysing the report of the Enquiry Officer and thedefence statement submitted by the petitioner, the MunicipalCommissioner came to the conclusion that the charges levelled againstthe petitioner were proved and passed final orders imposingpunishment of stoppage of increment for three years with cumulativeeffect. The order imposing punishment on the petitioner was servedon him on 24.1.1997. As per Rule 11 of the Tamil Nadu MunicipalServices Rules, 1970, the petitioner should have preferred an appealto the Director of Municipal Administration, Chennai, who is theappellate authority. The petitioner failed to avail the saidopportunity. In order to gain further time, he made an applicationto the disciplinary authority on 12.3.1997 to issue a copy of theenquiry report conducted on 3.12.1996. Due to administrativereasons, the request of the petitioner was not complied with. In thereply affidavit, it is therefore sought for the dismissal of thepetition.4. Mr.R.Muthukannu, learned counsel appearing for the petitionercontended,(a) the report of the Enquiry Officer has not at allbeen furnished to the petitioner;(b) even assuming that the original authority who hasimposed punishment, viz., the first respondent hereinhad differed from the finding of the Enquiry Officerthat the charges levelled against the petitioner werenot proved, the first respondent ought to have issued ashow-cause notice to the petitioner stating why he https://hcservices.ecourts.gov.in/hcservices/ differed from the findings of the Enquiry Officer andcalling upon the petitioner to offer his explanation andthereafter, the first respondent should have passed theorder in one way or the other; and(c) thus, according to the learned counsel appearingfor the petitioner, the said accepted procedure had notbeen followed and hence, the impugned order of the firstrespondent dated 24.1.1997 is liable to be set aside.5. Per contra, the learned Additional Government Pleaderappearing for the respondents contended that the charges against thepetitioner are serious in nature and after giving an opportunity tothe petitioner, the Enquiry Officer had been appointed and he alsofiled his report and since the first respondent had not accepted thereport, he had dealt with each and every charge levelled against thepetitioner and only after taking into account the report of theEnquiry Officer and the explanation of the petitioner, he imposedpunishment and hence, there is no procedural lapse in the case onhand. Further, according to the learned Additional GovernmentPleader, the report of the Enquiry Officer need not be furnished tothe petitioner. Thus, the learned Additional Government Pleadersought for dismissal of the writ petition. 6. I have considered the submissions made by the learned counselappearing for the petitioner and the learned Additional GovernmentPleader appearing for the respondents.7. It is the admitted case that the petitioner had been servedwith charge memo dated 6.11.1996. The lapses and irregularities inrespect of which charges framed against the petitioner are, set outin the reply affidavit, as follows: "(a) He has remitted the profession tax amount collected onvarious dates directly into the Municipal Treasury withoutmaking proper check by the clerical Assistant.(b) He has not returned back the counterfoil of the professiontax receipt book No.252501 to 252600 to this office after itsuse was over.(c) He has failed to note down the receipt Nos. in the chellanregister for the amount collected on 26.9.96 and thus violatedthe office procedure.(d) He has misappropriated the collected amount of Rs.1242/-in receipt No.252504 to 252511. (e) In order to hide the misappropriation committed by him, hegot back the receipts from the parties by saying someirrelevant reasons and remitted the misappropriated amountafter he was suspended.(f) He has collected the profession tax in certain wards whichare not allotted to him." https://hcservices.ecourts.gov.in/hcservices/

8. It is not in dispute that 15 days time had been granted tothe petitioner to put forth his defence and the MunicipalCommissioner had appointed Municipal Health Officer for conductingenquiry and the enquiry was conducted on 12.12.1996 and he filed theenquiry report before the original authority. But the question thatarises now for consideration is whether the report of the EnquiryOfficer had been furnished to the petitioner or not. In hisoriginal application, the petitioner had taken a definite stand thatthe enquiry report had not been furnished to him. In the replyaffidavit filed by the first respondent nowhere it has been statedthat the report of the Enquiry Officer had been furnished to thepetitioner. Further, the petitioner has taken a definite ground thatwhen the first respondent, the punishing authority, had disagreedwith the finding of the Enquiry Officer ought to have issued noticeto the petitioner before proceeding further. The learned counselappearing for the petitioner emphasised this ground and submittedthat the disciplinary authority, when he differs from the EnquiryOfficer's report, should serve a show-cause notice on the delinquentconcerned, giving reasons as to why he is disagreeing with thefindings of the Enquiry Officer and call upon him to offer hisexplanation for the same and then, after considering theexplanation, he should pass orders in one way or the other. Accordingto the learned counsel, such procedure has not been followed by thefirst respondent before imposing punishment referred to above. Whilea specific ground to this regard has been taken in the originalapplication, in reply affidavit no where it has been stated that thefirst respondent had served a show-cause notice on the petitionergiving reasons for disagreeing with the findings of the EnquiryOfficer. When there is no such averment in the reply affidavit, itis presumed that the disciplinary authority had not served any show-cause notice on the petitioner calling upon the petitioner to explainhis stand on the differing views of the disciplinary authority. 9. In this connection, the learned counsel appearing for thepetitioner, drew my attention to the judgement reported in 2006 (3)Andhra Law Times 286 (D.B.) [Narinder Kumar vs. Union of India andothers]. Paragraph 30 of the said judgement is usefully extractedhereunder:"30. It is well settled that while the disciplinaryauthority is entitled to disagree with the findings ofthe enquiry officer, he is required to intimate thedelinquent employee of the reasons which weighed withhim in differing with the conclusions of the enquiryofficer and give him an opportunity of submitting hisobjections thereto. Failure to do so would be inviolation of principles of natural justice, which wouldresult in the enquiry proceedings and the order of https://hcservices.ecourts.gov.in/hcservices/ punishment imposed being vitiated. The contention ofSri R.S.Murthy, learned Standing Counsel for therespondents, based on the judgement of the Supreme Courtin Managing Director ECIL. vs. Karunakar (AIR 1994 SC1074) and State Bank of Patiala v. S.K.Sharma (AIR 1996SC 1669) that no prejudice was caused to the petitioner,cannot also be accepted. As has been held by the ApexCourt in S.K.Sharma (cited supra), the prejudicedoctrine has no application in a case where noopportunity or no notice was given to the delinquentemployee. In the present case the petitioner was notput on notice regarding the Railway Board's tentativedisagreement with the findings of the enquiry officerand was denied the opportunity of submitting hisobjections thereto. Since it is a case of no notice andno opportunity, and falls within the categories excludedin S.K.Sharma (cited Supra), the prejudice doctrine hasno application."10. In yet another decision reported in AIR 1998 SC 2713 [PunjabNational Bank and others vs. Kunj Behari Misra] it has been held thatif the Enquiry Officer's report is in favour of the delinquent andthe disciplinary authority proposing to differ must give opportunityof hearing to the delinquent before recording his conclusion.Paragraph 17 of the said judgement is usefully extracted hereunder:"17. These observations are clearly in tune with theobservations in Bimal Kumar Pandit's case (AIR 1963 SC1612) quoted earlier and would be applicable at thefirst stage itself. The aforesaid passages clearlybring out the necessity of the authority which is tofinally record an adverse finding to give a hearing tothe delinquent officer. If the inquiry officer hadgiven an adverse finding, as per Karunakar's case (1994AIR SCW 1050) the first stage required an opportunity tobe given to the employee to represent to thedisciplinary authority even when an earlier opportunityhad been granted to them by the inquiry officer. Itwill not stand to reason that when the finding in favourof the delinquent officers is proposed to be over-turnedby the disciplinary authority then no opportunity shouldbe granted. The first stage of the inquiry is notcompleted till the disciplinary authority has recordedits finding. The principles of natural justice woulddemand that the authority which proposes to decideagainst the delinquent officer must give him a hearing.When the inquiring officer holds the charges to beproved then that report has to be given to the https://hcservices.ecourts.gov.in/hcservices/ delinquent officer who can make a representation beforethe disciplinary authority takes further action whichmay be prejudicial to the delinquent officer. When,like in the present case, the inquiry report is infavour of the delinquent officer but the disciplinaryauthority proposes to differ with such conclusions thenthat authority which is deciding against the delinquentofficer must give him an opportunity of being heard forotherwise he would be condemned unheard. Indepartmental proceedings what is of ultimate importanceis the finding of the disciplinary authority."11. In yet another judgement reported in 2001 (3) AdministrativeTotal Judgements 247 [State Bank of India and others vs. ArvindK.Shukla], the same view had been taken by the Hon'ble Apex Court.Paragraph 2 of the said judgement is usefully extracted hereunder:"2. Mr.Sundravardan, the learned senior counselappearing for the State Bank of India contended beforeus that in the case in hand, in fact, there has been nodisagreement with the finding of the enquiring officerby the disciplinary, and on the other hand, thedisciplinary authority on the accepted findings of theenquiring officer has recorded his conclusiondifferently on the basis of the relevant provisions ofthe Rules, and therefore the question of giving anopportunity to the delinquent that stage does not arise.To appreciate this contention, we have been takenthrough the findings of the enquiring officer andcharges 1(a) and 1(d) as well as the reasonings andultimate conclusion of the disciplinary authority onthese two charges. On examining the same, we are notpersuaded to accept the submission of the learnedcounsel and in our view, the disciplinary authority hasdisagreed with the conclusion and findings arrived bythe enquiring officer. The next question therefore is,as has been formulated earlier, whether the disciplinaryauthority was required to record its tentative reasonsfor disagreement and give to the delinquent officer andopportunity to represent before it recorded its ultimatefindings. This question is concluded by a 3-Judge Benchdecision of this Court in the case of Punjab NationalBank & Others vs. Kunj Behari Misra (JT 1998 (5) SC548). The Bench in the aforesaid case relied upon theearlier decision in the Institute of CharteredAccountants' case JT 1997 (6) SC 607 as well as the RamKishan case JT 1995 (7) SC 43 and came to hold that theview expressed in S.S.Kaushal 1995 (5) SLR 18 and M.C. https://hcservices.ecourts.gov.in/hcservices/ Saxena cases JT 1998 (2) SC 103 do not lay down thecorrect law. Mr.Sundravardan, however, brought to ournotice yet another 3-Judge Bench decision in the case ofUnion Bank of India v. Vishwa Mohan JT 1998 (3) SC 118and contended that a different view has been taken inthe aforesaid cases. But on examining the aforesaiddecision in Union Bank of India case, we find that thequestion which arose for consideration in the PunjabNational Bank case was not really there before the Courtand Court was examining the question as to what would bethe effect, if copy of the enquiry report is notfurnished to the delinquent employee. The Courtobviously relied upon the Constitution Bench decision ofthis Court in Managing Director, ECIL vs. B.Karunakar(JT 1993 (6) SC 1). In the absence of any contrarydecision of a three-Judge Bench decision on the questionin issue, we are bound by the earlier judgement of thisCourt in Punjab National Bank case, necessarily,therefore we do not find any merit in this appeal, whichstands dismissed."12. In yet another decision reported in 2006 (9) SCC 440 [LavNigam vs. Chairman & Managing Director, ITI Ltd., and another] asimilar view has been taken and paragraphs 10 and 12 are usefullyextracted hereunder:"10. The conclusion of the High Court was contrary tothe consistent view taken by this Court that in case thedisciplinary authority differs with the view taken by theinquiry officer, he is bound to give a notice setting outhis tentative conclusions to the appellant. It is onlyafter hearing the appellant that the disciplinaryauthority would at all arrive at a final finding ofguilt. Thereafter, the employee would again have to beserved with a notice relating to the punishment proposed.11. xxxx12. This view has been reiterated in YoginathD.Bagdge vs. State of Maharashtra (1999 (7) SCC 739). Inthis case also Rule 9(2) of the Maharashtra CivilServices (Discipline and Appeal) Rules, 1979 did notspecifically provide for a disciplinary authority to givean opportunity of hearing to the delinquent officerbefore differing with the view of the enquiry officer.The Court said: https://hcservices.ecourts.gov.in/hcservices/ "para 29: But the requirement of 'hearing' inconsonance with the principles of naturaljustice even at that stage has to be read intoRule 9(2) and it has to be held that before thedisciplinary authority finally disagrees withthe findings of the enquiring authority, itwould be given an opportunity of hearing to thedelinquent officer so that he may have theopportunity to indicate that the findingsrecorded by the enquiring authority do notsuffer from any error and that there was nooccasion to take a different view. Thedisciplinary authority, at the same time, has tocommunicate 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 enquiry authority are notgermane and the finding of 'not guilty' alreadyrecorded by the enquiring authority was notliable to be interfered with."13. Considering the above facts and circumstances of the case andconsidering the fact that the report of the Enquiry Officer had notbeen furnished to the petitioner and also considering the fact thatthe disciplinary authority who proposed to differ from the report ofEnquiry Officer, had not given any opportunity of hearing to thedelinquent, the petitioner herein, before imposing punishment, andalso considering the judgements referred to above, I am inclined toset aside the order of the first respondent dated 24.1.1997 and thewrit petition stands allowed. It is needless to say that the firstrespondent is at liberty to pass orders afresh after following theprocedure known to law. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kh https://hcservices.ecourts.gov.in/hcservices/ To1.The Commissioner Pollachi Municipality Pollachi.2.The Director of Municipal Administration Chennai.+ 1 CC To Mr.R.Muthukannu, Advocate SR NO.31581+ 1 CC To Mr.C.Kalaichelvan, Advocate SR NO.31622+ 1 CC To Mrs.Dhanalakshmi. Advocate SR NO.31750 Order in W.P.No.26477 of 2006BVR {CO}TP/10.7.08.