S.Krishnamoorthy v. The Commissioner of Civil Supplies & Consumer Protection Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.04.2010CORAM:THE HON'BLE MR.JUSTICE B.RAJENDRANW.P.Nos.37870 and 35755 of 2006(T)(O.A.No.8535 and 8790 of 1998)S.Krishnamoorthy... Petitioner in both W.P.Nos. Versus1. The Commissioner of Civil Supplies & Consumer Protection Department, Chepauk, Chennai – 600 005.

The Joint Commissioner I, Civil Supplies & Consumer Protection Department, Chepauk, Chennai – 600 005.

The Assistant Commissioner, Civil Supplies & Consumer Protection Department, Ambattur Zone, Chennai – 600 053. ... Respondents in both W.P.Nos. Prayer in W.P.No.37870 of 2006: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.8535 of 1998 from the file of Tamil NaduAdministrative Tribunal with a prayer to set aside the impugned proceedings passed by the second respondent in R.c.No.A3/27859/96dated 29.06.1998 imposing the punishment of 'Censure' on the petitioner. Prayer in W.P.No.35755 of 2006: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.8790 of 1998 from the file of Tamil NaduAdministrative Tribunal with a prayer to direct the second respondent to include the name of the petitioner in the panel of PersonalAssistants to Assistant Commissioner / Deputy Commissioner of CivilSupplies Department, for the year 1998, issued by the second respondent in R.c.No.A1/10022/98 dated 28.09.1998 according to the feeder category seniority of the petitioner.

The petitioner filed another application in the O.A. No.8790 of 1998 wherein he seeks a direction to the second respondent to include his name in the panel for promotion to the post of Personal https://hcservices.ecourts.gov.in/hcservices/ Assistant to the Assistant Commissioner/Deputy Commissioner, CivilSupplies Department, issued by the Second respondent dated12.10.1998, according to the feeder category seniority of the petitioner. In this application, the petitioner would contend that his name was included in the panel during the year 1995 but for wantof vacancy, he was not actually promoted. The petitioner had put in30 years of service. He was due to retire on 31.03.1999. The crucial date is 15th March of each year for promotion to the next higher post. In the subsequent panel drawn for the year 1996 and 1997, due topendency of charge against him under Rule 17(b), his name was not included. Subsequently, the punishment of censure was imposed on the petitioner on 29.06.1998 and his name was not included for the year1998. Hence, he challenges that punishment of censure and also noninclusion of his name in the panel for the subsequent years.

The respondents have not filed the counter. The learnedGovernment Advocate submits that the petitioner's name was rightly not included in the promotional panel since there was a currency of punishment. Therefore, the petitioner cannot, as a matter of right, seek for promotion to the next higher post.

Heard both parties. In so far as O.A. No. 8535 of 1998(WPNo. 37870 of 2006) six charges were framed against the petitioner out of which the enquiry officer found that charge No.4 alone washeld proved and the other charges are not proved. The enquiry officer report was communicated to the petitioner by proceedingsNa.Ka.No.A3/27859/96 dated 02.03.1998. After receipt of the enquiryofficer's report on 02.03.1998 itself, the petitioner sent a detailed reply stating that charge No.4 which was held proved is not correct. The petitioner also pointed out that he has not recommended for issue of any fictitious card, as alleged. In the last paragraph, the petitioner says that "as the card has been issued to a genuine person it cannot be construed as a bogus card and I have not recommended for issue of any fictitious card. Hence, I request you to drop Charge IValso and exonerate me. " In the reply, the petitioner has very categorically answered to the enquiry report in so far as the chargeNo.4 which was held proved since other Charges were not proved. Hehas not canvassed anything other than charge No.4. But the disciplinary authority in the impugned order dated 29.06.1998 after extracting all the details regarding the charges, findings and the enquiry report, would state as follows: " I have gone through the charges framed against the delinquent, the explanation of the delinquent, the report of the Enquiry officer and the objections of the delinquent on the EnquiryOfficer's report and connected records very carefully. Any lapse committed does not get exonerated merely because the superior officer does not point it out. It is proved that the delinquent did not submit his diary in the prescribed format. The diary should have been submitted by the delinquent in the format prescribed. Further, the delinquent has made https://hcservices.ecourts.gov.in/hcservices/ wrong entries while mentioning the address of the petitioner. It shows his callous attitude towards official duties. However since there isno financial implications, a lenient view istaken and the delinquent is awarded with a"CENSURE"

On a reading of the impugned order, it is very clear that the disciplinary authority has taken into consideration the fifth charge for imposing punishment. The 5th charge relates to production of diary in the prescribed format. Unfortunately, the punishment was not given for the proved charge namely charge No.4, whereas the punishment was given for charge No.4 and 5 together. If the disciplinary authority wanted to disagree with the enquiry officer’sreport in respect of the Charge No.5, he should have given reason and sent a notice to the petitioner expressing his disagreement to the findings of the enquiry officer relating to 5th charge, but the same was not done by the disciplinary authority. Therefore, the impugned order is against the legal principles.

The learned counsel for the petitioner relied upon the decision of the Supreme Court reported in Punjab National Bank v. Sh.Kunj Behari Misra, JT 1998 (5) SC 548, wherein the HonourableSupreme Court has categorically held as follows: "..... When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, thereis no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer'sreport and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in karunakar's case(supra).19.The result of the abovesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary Authoritydisagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The https://hcservices.ecourts.gov.in/hcservices/ report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. Theprinciples of natural justice, as we have already observed, require the authority, which has to takea final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. "

All it requires for the disciplinary authority was to intimate the delinquent officer that he is disagreeing with the findings of the enquiry officer and should give a opportunity to the petitioner to submit his explanation regarding his disagreement, but it has not been done. Even though the punishment is only censure it has affectted the petitioner's promotion. Inasmuch as the punishment has been imposed by violation of principles of natural justice, even though it was a minor punishment, the impugned order of censure cannot be sustained.

In this case, inasmuch as the petitioner retired from service way back in the year 1999 and more than 11 years have now lapsed, there is no point in remanding the matter back to the respondent for fresh consideration. Accordingly, the impugned order passed by the second respondent in R.c.No.A3/27859/96 dated29.06.1998 imposing the punishment of 'Censure' on the petitioner is set aside and WP No. 37870 of 2006 is allowed. No costs.

The second writ petition namely WP No. 35755 of 2006 was filed on the ground that even though the petitioner's name was included in the panel for promotion for the year 1995, for want of vacancy his name was not considered. Thereafter, when the panel for promotion was drawn during 1997 and 1998, the petitioner was denied promotion only on the basis of the punishment of censure imposed on him. In view of the fact that the punishment itself has been setaside by this Court, the respondents are directed to consider the claim of the petitioner for promotion from the year 1997 and pass orders on merits and in accordance with law to grant notional promotion from that date, as he has already retired from service on31.03.1999. Accordingly, WP No. 35755 of 2006 is disposed of. Nocosts. Sd/Asst. Registrar/true copy/Sub Asst. Registrarogy/rshTo1. The Commissioner of Civil Supplies & Consumer Protection Department, Chepauk, Chennai – 600 005.2. The Joint Commissioner I, Civil Supplies & Consumer Protection Department, Chepauk, Chennai – 600 005.3. The Assistant Commissioner, Civil Supplies & Consumer Protection Department, Ambattur Zone, Chennai – 600 053.1 cc To The Government Pleader, SR.254192 ccs To Mr.S.Vadivelu, Advocate, SR.25030 and 25031WP Nos. 37870 & 35755/2006KJI(CO)sra 29/10/2010