High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18-07-2007CORAM :THE HONOURABLE MR.JUSTICE A. KULASEKARANW.P. No. 13557 and 13558 of 2001-o-P.R. Jayaraman.. Petitioner in both the Writ Petitions Versus1. The Tamil Nadu Civil Supplies Corporation Limited rep. By its Chairman-cum-Managing Director No.12, Thambusamy Road Kilpauk, Chennai – 600 0102. The Government of Tamil Nadu rep. By its Secretary to Government Co-operation, Food and Consumer.. Respondents in Protection Department both the writ Secretariat, Chennai – 600 009 petitions WP No. 13557 of 2001: Petition filed under Article 226 of TheConstitution of India praying for a Writ of Certiorarified Mandamuscalling for the records of the first respondent inRc.No.H3/42126/98, dated 29.05.1998 and quash the same and directthe respondents to pay the petitioner all the terminal benefitswith interest at 18% per annum from the date of his retirement tillthe payment.WP No. 13558 of 2001: Petition filed under Article 226 of TheConstitution of India praying for a Writ of Certiorari calling forthe records of the first respondent in No.G5/56226/98 dated06.07.2001 and quash the same.For Petitioner :Mr. Chinnasamy, Senior Advocate for Mr. Haja Mohideen Gisthi in both the writ petitions For Respondents:Mr. G. Senthil Kumar for R1 in both the writ petitionsMr. S. Gopinathan Additional Government Pleader for R2 in both the writ petitions https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERIn both the writ petitions, the petitioner and the respondentsare one and the same, besides that the issue involved areidentical, hence, they are disposed of by this common order.2.The petitioner was appointed as Assistant Engineer inpublic works department in the year 1965, later, he was deputed tothe Tamil Nadu Civil Supplies Corporation wherein he was absorbedas Assistant Engineer, in the year 1977, he was promoted asAssistant Executive Engineer and subsequently, in the year 1985,he was promoted as Executive Engineer. Two days prior to hisretirement i.e., on 29.05.1998, the first respondent has issued acharge which is challenged in WP No. 13557 of 2001. The chargesare:-"Charge No.1: that he failed to exerciseproper control over his subordinates and failedto extract work from them without anycomplaints from the publicCharge No.2: that he has failed to seethat the bills claimed by the private partiesattending to the work of TNCSC are passedsmoothly without demanding any illegalgratification from the partiesCharge No.3: that he has failed tomaintain absolute integrity, devotion to hisduties and responsibilities in discharging hisdutiesCharge No.4: that he is negligent indischarging his duties and responsibilities andthus brought disrepute to the corporation." 3.On receipt of the charge memo, the petitioner submittedhis explanation on 01.06.1998 denying the charges. Thereafter, thefirst respondent has appointed an enquiry officer, who conductedenquiry and found that none of the charges levelled against himwere proved. To that effect, the enquiry officer has filed hisreport to the first respondent on 06.08.1998. Thereafter, therespondents remained silent and on 06.07.2001, by proceedings dated06.07.2001, the first respondent informed the petitioner that freshenquiry would be conducted after observing all essentialformalities and procedures, which is challenged in WP No. 13558 of2001. 4.Mr. Chinnasamy, learned senior counsel appearing for thepetitioner submitted that the charges levelled against thepetitioner are flimsy, vague and not supported by any evidence;that the enquiry officer, after proper consideration of the samehas found that the charges are not proved; that the proceedingsdated 06.07.2001 of the first respondent for de-novo enquiry hasbeen issued mechanically and no reason is assigned for the same;that there was a delay of three years from the date of filing ofthe report by the enquiry officer, which is not properly explained;that in any event, without invalidating the earlier enquiry https://hcservices.ecourts.gov.in/hcservices/ directing to conduct fresh enquiry is unsustainable in law andprayed for allowing of the writ petitions. 5.Mr. Senthil Kumar, learned standing counsel appearing forthe first respondent reiterated the contents of the counter andsubmitted that based on the report received from the Directorate ofVigilance and Anti-corruption department dated 14.05.1998 and alsothe letter received from the Secretary to Government, Food andConsumer Protection Department dated 29.05.1998, charges memo wasissued to the petitioner on 29.05.1998 and he was allowed to retirewithout prejudice to initiate appropriate departmental action; thatbased on the lapses pointed out by the Directorate of Vigilance andAnti-corruption Department, four charges were framed against thepetitioner under Regulation 4 chapter V of the Tamil Nadu CivilSupply Employees Service Regulation 1989 by the first respondent;that the charge memo was served on the petitioner on 29.05.1998, anenquiry officer was appointed on 16.06.1998 who submitted hisreport on 05.08.1998 holding that all the charges framed againstthe petitioner were not proved and that the enquiry report was alsoserved on the petitioner on 10.08.1998 and he was called upon tosubmit his further explanation; that the petitioner has acceptedthe enquiry findings and not offered any explanation; that based onthe Government letter dated 10.02.2000, disciplinary action wasordered to be taken against the petitioner and the said proposalwas placed before the Board for consideration, which was also sentto the Government along with the recommendations of the Board andrequested to pass orders on the initiation of departmental actionagainst the petitioner vide letter dated 12.06.2000; that theGovernment, in their letter dated 04.06.2001 has stated that clearcut charges have not been framed and the departmental enquiry wasnot conducted in the manner as per the procedure prescribed in para109 of the Director of Vigilance and Anti Corruption Manual; thatin pursuance of the recommendations of the Vigilance and AntiCorruption Department, the first respondent has ordered to conductfresh enquiry against the petitioner and also to take necessarydepartmental action against the enquiry officer for irregularitiescommitted by him in conducting the enquiry. It is further pointedout by the learned standing counsel for the first respondent thatin view of the fact that charges are not framed as per theprocedures established under the Rules and enquiry was notconducted as required, fresh enquiry was rightly ordered to beconducted by the first respondent and prayed for dismissal of thewrit petition. 6.This Court carefully considered the argument of thecounsel on both sides. In the Order dated 06.07.2001 of the firstrespondent, it is stated thus:-"Thiru. S. Tharmarajan, Senior GeneralManager (Coordination) and Secretary, HeadOffice was appointed as Enquiry Officer toconduct domestic enquiry on the chargeslevelled against Thiru. P.R. Jayaraman,Executive Engineer (now retired) in thereference 3rd read above. https://hcservices.ecourts.gov.in/hcservices/ In the reference 4th read above, Governmenthave directed to conduct enquiry afterobserving all essential formalities andprocedures without omission.Hence, Thiru. M. Vijayakumar, GeneralManager (Administration)/District RevenueOfficer, Head Office is appointed as enquiryofficer to conduct domestic enquiry afresh onthe charges levelled against Thiru. P.R.Jayaraman, Executive Engineer (now retired) forthe irregularities pointed out in the chargememo issued in the reference 1st read above.Thiru. S. Ramachandran, ConstructionEngineer, Head Office is appointed asManagement Representative in this case.The Enquiry Officer is requested to submithis enquiry report in duplicate within 30 daysfrom the date of receipt of this order.A copy of the instructions issued by theDirector of Vigilance and Anti Corruption isalso sent herewith (enclosed)."7.In the said proceedings dated 06.07.2001, it is stated by thefirst respondent that the Government has directed to conductenquiry afresh after observing all essential formalities andprocedures and informed the petitioner that Mr. M. Vijaya Kumar,General Manager " is appointed as enquiry officer to conductdomestic enquiry afresh on the charges levelled against " thepetitioner herein " for the irregularities pointed out in thecharge memo " dated 29.05.1998. It is evident that the respondentsnot decided to issue any fresh charges, though it is mentioned inthe counter that " clear cut charges have not been framed " howeverchosen to proceed for fresh enquiry. Except the contents nothingfound in the proceedings dated 06.07.2001. The copy of the letterdated 04.06.2001 of the government was not served to the petitionernor placed before this Court for consideration. In a particularcase, there has been no proper enquiry because of some seriousdefects has crept into the enquiry or some important witnesses werenot available at the time of the enquiry or were not examined forsome other reason, the disciplinary authority may ask the enquiryofficer or new enquiry officer in case previous enquiry officer notavailable to record further evidence. In the absence of anyprovision, it is not open to the disciplinary authority to setaside the previous enquiry. In this context, it is relevant torefer to the decision of the Honourable Supreme Court reported in(K.R. Deb vs. The Collector of Central Excise, Shillong) AIR 1971Supreme Court 1447 wherein in Para No.13, it was held thus:- https://hcservices.ecourts.gov.in/hcservices/ "13.It seems to us that Rule 15, on theface of it, really provides for the inquiry butit may be possible if in a particular casethere has been no proper enquiry because someserious defect has crept into the inquiry orsome important witnesses were not available atthe time of the inquiry or were not examinedfor some other reason, the DisciplinaryAuthority may ask the Inquiry Officer to recordfurther evidence. But there is no provision inrule 15 for completely setting aside previousinquiries on the ground that the report of theInquiring Officer or Officers does not appealto the Disciplinary Authority. TheDisciplinary Authority has enough powers toreconsider the evidence itself and come to itsown conclusion under rule 9."8.In this case, nothing whispered in the impugnedproceedings dated 06.07.2001 about the validity or otherwise of theearlier enquiry besides that the earlier enquiry report was not setaside and no service rule is relied on by the respondents tojustify the fresh enquiry. It is relevant to look into thedecision of a Division Bench of this Court dated 29.01.2007 passedin WP No. 40458 of 2002 wherein in Para No.13, it was held thusZ:-"13.It is settled proposition of law thatmere irregularity in the enquiry report is notsufficient for ordering 'de novo' enquiry andthe sine quo nan or pre condition required forordering 'de novo' enquiry are:(1)The authority ordering 'de novo'enquiry must be empowered with the power ofsetting aside the enquiry report, submitted bythe enquiry officer and the order passed bydisciplinary authority, either as appellate orrevisional authority. (2)Further, to order 'de novo' enquiry,there should be patent irregularity orillegality in the earlier enquiry reportsubmitted by the enquiry officer, and(3)Without setting aside the earlierreport, based on adequate reasoning, 'de novo'enquiry cannot be ordered by the authority."9.In this case, the respondents have admitted that clear cutcharges have not been framed, hence, when the charges are vague,making the petitioner to suffer again by subjecting him todisciplinary proceedings cannot be permitted. https://hcservices.ecourts.gov.in/hcservices/

10.In this background, it is necessary to point out that theenquiry officer originally appointed by the respondents hassubmitted his report dated 06.08.1998 finding that the chargesagainst the petitioner were not proved. The impugned proceedingsdated 06.07.2001 was issued by the first respondent after lapse ofabout three years. The petitioner has already retired fromservice, hence, no useful purpose will be served in directing toconduct fresh enquiry. It is also to be remembered that two daysprior to the superannuation of the petitioner i.e., 31.05.1998, thecharge memo dated 29.05.1998 was issued by the first respondent. 11.As rightly pointed out by the learned senior counsel forthe petitioner, the delay of three years in issuing the impugnedproceedings dated 06.07.2001 is not properly explained by therespondents. It is also evident from the above said order that onlyone thing is repeatedly mentioned that as per the instructions ofthe Government fresh enquiry is ordered, which is not a validreason. 12.In view of the above said discussions, this Court cancome to only one conclusion that the impugned proceedings dated06.07.2001, which is the subject matter of WP No. 13558 of 2001 isunsustainable in law, hence, the same is quashed. The firstrespondent has admitted that clear cut charges have not been framedagainst the petitioner, hence, the charge memo dated 29.05.1998 isalso quashed.11.In the result, the writ petitions are allowed. No costs.rshSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Chairman-cum-Managing DirectorTamil Nadu Civil Supplies Corporation Limited No.12, Thambusamy Road Kilpauk, Chennai – 600 0102. The Secretary to Government of Tamil Nadu Co-operation, Food and Consumer Department Secretariat, Chennai – 600 009+ 2cc to Mr. S. Haja Mohideen Gisthi, Advocate sr nos. 43773 44462+ 2cc to Mr. G. Senthil kumar, Advocate sr nos. 44361, 44362+1cc to the Government Pleader sr no. 44116BS(CO)NM(25.07.07)WP NoS. 13557 & 13558/2001