IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :02.11.2011 CORAM THE HONOURABLE Mr. JUSTICE D. HARIPARANTHAMAN W.P.No.47381 of 2006 (O.A.No.4807 of 2001) R.Gokuladoss Junior Draughting Officer Public Works Department Planning & Designs Division Karaikudi 630 002 .. Petitioner /vs/ 1.The State of Tamil Nadu rep. By the Secretary to Government, Public Works Department, Secretariat, Chennai 600 009. 2.The Engineer in Chief WRO and Chief Engineer(General), Public Works Department, Chepauk, Chennai 600 006. .. Respondents PRAYER: This Writ petition came to be numbered under Article 226 of Constitution of India by way of transfer of O.A.No.4807 of 2001 from the file of the Tamil Nadu Administrative Tribunal, Chennai praying for issuance of a Writ of Mandamus to call for the records and to set aside the order passed by the first respondent in G.O.2D.No.83 Public Works Department dated 13.12.1999 and direct the respondents to give consequential promotion to the petitioner as Draughting Officer from the date on which his junior was promoted. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.S.Vadivelu For Respondents : Mr.Rm.Mutthukumar Government Advocate ORDER During the year 1993, the petitioner was working as Junior Draughting Officer in the office of the Executive Engineer, Public Works Department, Aranthangi Division. He was issued a charge memo dated 14.12.1995 under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. Five charges were made against the petitioner. 2. The crux of the charges was that the petitioner made despatch entry in the Despatch Register as if a letter was despatched on 26.03.1993, when the letter was actually typed on 12.04.1993. 3. The allegations were made based on the statements of 1. V.Gnanasekaran, Executive Engineer, 2. K.R.Arunachalam, Divisional Accountant, 3. P.Vikkiramathithan, Junior Assistant and 4. Selvi.N.Kalaivani, Junior Assistant, made to the Vigilance officer. 4. The petitioner requested the Disciplinary Authority to furnish the statements based on which the charges were framed in the form of questionnaire. The question No.5 in the form of questionnaire is relevant and the same is extracted hereunder:- 5. Do you desire to be supplied with copies of any records or the depositions of witnesses or the report of the enquiring officer If so, give particulars of the records, copies of which are required. The Copies of statements obtained from other witnesses which are based for framing charges against me may be supplied before passing orders on the explanation However, the statements were not furnished. The enquiry officer submitted a report dated 27.12.1998 holding that the charges were established. The first respondent sent a letter dated 5.4.1999 enclosing the enquiry officer's report and sought the comments https://hcservices.ecourts.gov.in/hcservices/ thereon from the petitioner. The petitioner gave a representation dated 19.5.1999 on the report of the enquiry officer. In his representation, he pointed out various infirmities in the report of the enquiry officer. One of the infirmities is that the petitioner was not furnished with the statements of the witnesses that were made during the preliminary enquiry, while the same were relied on by the enquiry officer to hold the charges as proved. But the first respondent passed the impugned order dated 13.12.1999 without considering the aforesaid point raised by the petitioner. The first respondent issued G.O.2D.No.83, Public Works (E1) Department, dated 13.12.1999 imposing the punishment of stoppage of increment for two years with cumulative effect. A review petition was submitted by the petitioner to the Government on 30.03.2000, but no orders were passed on the same. Hence, the petitioner filed O.A.No.4807 of 2001 (W.P.No.47381 of 2006) to quash the aforesaid G.O.2D.No.83, Public Works (E1) Department, dated 13.12.1999. 5. Heard Mr.S.Vadivelu, learned counsel for the petitioner, Mr.Rm.Mutthukumar, learned counsel for the respondents. 6. The matter lies in a very narrow compass. Though various issues were raised, I am inclined to consider the short ground that though the petitioner sought the statements of witnesses examined during the preliminary enquiry, which were relied on by the enquiry officer to hold the charges proved, the same were not furnished to the petitioner. 7. When the questionnaire in a prescribed form as per Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules was given to the petitioner, he categorically requested to furnish the copies of the statement of the witnesses, as found in his response to question No.5 and the request of the petitioner was already extracted above. But the same was not furnished to him. 8. The enquiry officer heavily relied on the statement of witnesses made during the preliminary enquiry to hold the charge, namely, the petitioner made entry in the Despatch Register proved. The relevant passage from the report of the enquiry officer is extracted hereunder:- “mj;Jld; m";ry; tHp jghy; mDg;g[ifg; gjpntl;oy; 26?3?93 md;W 7?tJ ,dj;jpy; 3?tJ thpahf ,ilbrUfyhf vGjg;gl;Ls;s vGj;J jpU/Mh;/nfhFyjh!;. ,sepiy tiubjhHpy; mYtyhpd; https://hcservices.ecourts.gov.in/hcservices/ ifbaGj;J jhd; vd;W jpU/ tp//"hdnrfud;. braw;bghwpahsUk;. jpU/ nf/Mh;/mUzhryk;. nfhl;lf;fzf;fUk;. jpUkjp vk;/V/fiythzp. ,sepiy cjtpahsUk;. jpU/gp/tpf;fpukhj;jd;. ,sepiy cjtpahsUk; CHy; jLg;g [ Ma;thshplk; mspj;j thf;FK:yj;jpy; bjspthf Fwpg;gpl;Ls;shh;fs;/@ 9. Furthermore, when the enquiry officer recorded a finding of guilt and the comments thereon were sought by the Disciplinary Authority, the petitioner pointed out that there was an infirmity, namely the petitioner was not furnished with the statements of witnesses made during the preliminary enquiry, which were relied on by the enquiry officer. The relevant portion is extracted hereunder:- @,j;Jld; bfh!;l;ondahpy; ehd; nfhhpago rhl;rpa';fs; mspj;j thf;FK:y efy; tH';fg;gltpy;iy/ tprhuiz fkpc&dpy; ,th;fs; Vd; vd; Kd;dpiyapy; FWf;F tprhuiz bra;a vdf;F xU re;jh;g;gk; mspf;fhky;. g[ydha;t[j;Jiw Ma;thsplk; mspj;jjhff; Twg;gl;l rhl;rpa';fis Vw;wf;bfhz;L Fw;wk; epU:gzk; Mfptpl;lJ vd;W brhy;tJ epahaj;jpw;F g[wk;ghdJ vd;gij bjspt[g;gLj;j tpUk;g[fpnwd;/@ 10. But the same was not considered in the impugned Government Order. The same was pointed out in the petition filed by the petitioner. He categorically pleaded in para 13 of the writ petition is as follows:- 13. The applicant came to know from the Enquiry Officer's Report that the Enquiry Officer has come to the conclusion that the handwriting in the despatch register (Item No.7) on 26.03.1993 was the handwriting of the applicant relying on the statements of the following persons before the Vigilance Inspector. 1.V.Gnansekaran, Executive Engineer 2.K.R.Arunachalam, Divisional Accountant 3.P.Vikkiramathithan, Junior Assistant 4.Selvi.N.Kalaivani, Junior Assistant. But the reply found in para 10 of the counter affidavit is as follows:- "10. ... it is submitted that as already explained, he ought to have requested the disciplinary authority or the Inquiry Officer to furnish the copies of the witness statements which he had not done. As such his newly found https://hcservices.ecourts.gov.in/hcservices/ contention that the copies of witness statements had not been furnished to him cannot be accepted." 11. According to the respondents, the petitioner did not make a request. This is not factually true. He made a specific request, it is also pointed out by him, when he gave representation on the report of the enquiry officer. Hence, the petitioner was not given reasonable opportunity in the enquiry. In the similar circumstances, as rightly contended by the learned counsel for the petitioner, the impugned order was quashed by the Hon'ble Apex Court in State of U.P. vs. Shatrughan Lal and another [AIR 1998 Supreme Court 3038]. In paragraph 10 of the said judgment, it was held as follows:- “10. It has also been found that during the course of the preliminary enquiry, a number of witnesses were examined against the respondent in his absence and rightly so, as the delinquents are not associated in the preliminary enquiry, and thereafter the charge-sheet was drawn up. The copies of those statements, though asked for by the respondent, were not supplied to him. Since there was a failure on the part of the appellant in this regard too, the Tribunal was justified in coming to the conclusion that the principles of natural justice were violated and the respondent was not afforded an effective opportunity of hearing, particularly as the appellant failed to establish that non-supply of the copies of statements recorded during preliminary enquiry had not caused any prejudice to the respondent in defending himself.” 12. For all the aforesaid reasons, the impugned order is quashed. The writ petition is disposed of. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. ari https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government The State of Tamil Nadu Public Works Department Secretariat, Chennai 600 009. 2. The Engineer in Chief WRO and Chief Engineer(General) Public Works Department Chepauk, Chennai 600 006 +1CC to Mr.S.Vadivelu, Advocate SR.66551 +1CC to The Government Pleader SR.66853 W.P.No.47381 of 2006 (O.A.No.4807 of 2001) SK(CO) KSA(15/12/2011) https://hcservices.ecourts.gov.in/hcservices/