Ramakrishnan v. Revenue Department, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 30.03.2009CoramThe Honourable Mr.JUSTICE N.PAUL VASANTHAKUMARW.P.No.39240 of 2006Ramakrishnan.. Petitionervs1.The Secretary to GovernmentRevenue Department, Chennai 9.2.The Principal Commissioner and Commissioner of Revenue Administration,Chennai.3.The Collector,Thoothukudi District, Thoothukudi... RespondentsThis petition came to be numbered by transfer of O.A. No.3253 of1999 from the file of the Tamil Nadu Administrative Tribunal prayingfor issuance of a Writ of certiorari to call for the records inconnection with impugned order No.1 Na.Ka.A6.45014/93 dated 4.6.1996of the Collector, Chidambaranar District, Thoothukudi and impugnedorder No.2 Na.Ka.No.Work 5(3)/81396/96 dated 9.1.1998 of thePrincipal Commissioner and Commissioner of Revenue Administration,Chennai-5 and impugned order No.3 G.O.(3D) No.27 dated 17.12.1998 ofthe Revenue Department, Chennai 9.For Petitioner: Mr.S.Ilamvaludhi For Respondents: Mr.P.Subramanian, AGPO R D E RThe prayer in the writ petition is to quash the order ofpunishment imposed against the petitioner by an order of the thirdrespondent dated 4.6.1996, confirmed by the second respondent by anorder dated 9.1.1998 and the first respondent through G.O.(3D) No.27dated 17.12.1998.2. The petitioner was issued with a charge memo under Rule 17(a)of the Tamil Nadu Civil Services (D&A) Rules, containing four https://hcservices.ecourts.gov.in/hcservices/ charges. Eventhough charge memo was issued under Rule 17(a), enquirywas conducted by the District Supply Officer, Tuticorin, who gave afinding that the four charges were not proved. The disciplinaryauthority, differed with the findings of the enquiry officer inrespect of charge No.1 and ordered to refund a sum of Rs.100/- andalso imposed a punishment of withholding of increment withoutcumulative effect for six months. Appeal filed against the saidorder was also dismissed by the second and the Revision filed beforefirst respondent was also dismissed. 3.The learned counsel for the petitioner submitted that whenenquiry officer gave a finding that charges levelled against thepetitioner including charge No.1 has not been proved, thedisciplinary authority without giving any reason to differ with thesaid finding and calling for explanation for the differing view, haschosen to pass the order of punishment which is unsustainable in viewof the Judgment in PUNJAB NATIONAL BANK AND OTHERS VS KUNJ BEHARIMISRA (1998)7 SCC 84 and in LAV NIGAM VS CHARIMAN AND MD.ITI LTD ANDANOTHER reported in (2006) 9 SCC 440 and also in violation of Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal). 4.Heard the learned Additional Government Pleader.5. Admittedly, the enquiry officer has found that all the fourcharges have not been proved. However, the third respondent differedwith the findings with regard to charge No.1 alone and , withoutcommunicating the differing view and calling for explanation from thepetitioner has chosen to pass the order of punishment which wasconfirmed in appeal and Revision by the respondents 2 and 3respectively by orders dated 9.1.1998 and 17.12.1998. 6. In PUNJAB NATIONAL BANK AND OTHERS VS KUNJ BEHARI MISRAreported in (1998)7 SCC 84, it is held by the Open Court that whenthe Enquiry Officer's finding is disagreed by the DisciplinaryAuthority, the Disciplinary Authority has to give reasons as to whyhe has differed with the Enquiry Officer's finding and the differingview should be communicated to the Delinquent Officer and afterobtaining explanation from the Delinquent Officer, the DisciplinaryAuthority should record that the charges are proved. Paragraph 19 ofthe Judgment reads as follows:"whenever the disciplinary authority disagrees with theenquiry authority on any article of charge, then before itrecords its own findings on such charge, it must record itstentative reasons for such disagreement and give to thedelinquent officer an opportunity to represent before itrecords its findings. The report of the enquiry officercontaining its findings will have to be conveyed and thedelinquent officer will have an opportunity to persuade thedisciplinary authority to accept the favourable conclusion https://hcservices.ecourts.gov.in/hcservices/ of the enquiry officer. The principles of natural justice,as we have already observed, require the authority which hasto take a final decision and can impose a penalty, to givean opportunity to the officer charged of misconduct to filea representation before the disciplinary authority recordsits findings on the charges framed against the officer.20. The aforesaid conclusion which we have arrived atis also in consonance with the underlying principleenunciated by this Court in the case of Institute ofChartered Accountants. While agreeing with the decision inRam Kishan case we are of the opinion that the contrary viewexpressed in S.S.Koshal and M.C.Saxena cases do not lay downthe correct law." 7. The same is view is taken by the Apex Court in the decisionreported in (2006) 9 SCC 440 (cited supra). In paragraph 9, 10, 13and 14, it is held thus:-"9. ....The appellant specifically raised theissue that the disciplinary authority was obliged togive a separate show-cause notice if the disciplinaryauthority differed with the inquiry show-cause noticeif the disciplinary authority differed with the inquiryofficer. The High Court also held that there was noneed to give two separate show-cause notices one beforethe disciplinary authority found against the employeewhile differing with the view of the inquiry officer,and another against the proposed punishment. It wasfurther held that the two notices could be combined inone. The writ petition was accordingly dismissed.10. The conclusion of the High Court was contraryto the consistent view taken by this Court that in casethe disciplinary authority differs with the view takenby the inquiry officer, he is bound to give a noticesetting out his tentative conclusions to the appellant.It is only after hearing the appellant that thedisciplinary authority would at all arrive at a finalfinding of guilt. Thereafter, the employee would againhave to be served with a notice relating to thepunishment proposed....13....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 accordingly https://hcservices.ecourts.gov.in/hcservices/ allowed 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."The said procedure has not been followed admittedly by theDisciplinary Authority in the present case. Hence, the punishmentimposed against the petitioner based on the first charge cannot besustained. The appellate authority and revisional authority alsofailed to note this aspect and dismissed the appeal and revision.The said orders are also unsustainable. 8.In the light of the above undisputed facts and following theJudgments above cited, the impugned order of the third respondentdated 4.6.1996 which was confirmed by the second and firstrespondents by orders dated 9.1.1998 and 17.12.1998 are set asideand the matter is remitted to the third respondent, the DistrictCollector, Thoothukudi District to proceed from the stage ofdiffering view expressed in charge No.1 and communicate the same tothe petitioner and after considering the petitioners remarks, passfresh orders if it is warranted. If any action is to be taken fromthe said stage, the same shall be commenced and completed within aperiod of three months from the date of receipt of a copy of thisorder. 9.The Writ Petition is allowed on the above terms. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.rpaTo1.The Secretary to GovernmentRevenue Department, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/

2.The Principal Commissioner and Commissioner of Revenue Administration,Chennai.3.The Collector,Thoothukudi District, Thoothukudi.+ 1 CC to the Government Pleader SR NO.11289W.P.No.39240 of 2006BK {CO}TP/21.4.2009.