IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.11.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.24776 of 2004 K.Ramasamy .. Petitioner Vs. 1. The General Manager (Administration) Tamil Nadu Civil Supplies Corporation Ltd. Head Office, 14, Thambusamy Road Kilpauk, Chennai – 600 010. 2. The Regional Manager Tamil Nadu Civil Supplies Corporation Ltd. Namakkal Region Namakkal. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of respondents 1 and 2 relating to the proceedings No.G1/128200/2003, dated 1.3.2004 and the proceedings No.C2/1691/03, dated 7.8.2003 respectively and quash the same. For Petitioner : Mr.V.Sanjeevi For Respondents : Mr.M.Devadoss ORDER The writ petition is directed against the order of the first respondent dated 1.3.2004, by which the first respondent has rejected the appeal filed by the petitioner against the order of punishment imposed by the second respondent in the order dated 7.8.2003 by postponing the increment of the petitioner for a period of two years with cumulative effect. As per the Tamil Nadu Civil Supplies Corporation Limited Employees' Service Regulations, 1989 (for brevity, "the Regulations") governing the service conditions of the petitioner, the said punishment is categorized as a major punishment. 2.1. The petitioner is stated to have been appointed as a Bill Clerk in the Tamil Nadu Civil Supply Corporation and is working in https://hcservices.ecourts.gov.in/hcservices/ the Namakkal Region. The second respondent issued a charge memo on 7.4.2003 framing two charges against him, viz., (i)that the petitioner has not properly supervised the standardization work by giving 100% weighment in relation to paddy, sugar for the Corporation Retail Shop and the Co-operative Society Shop under Public Distribution System by joining hands with the loadmen for causing lesser weight with intent to have personal gain and thereby violated the Regulations; and (ii)that in the course of doing standardization work, the petitioner failed to maintain the physical stock on the closing balance on that day. The said charges are stated to be based on a report of the Vigilance Cell and one of the grievances of the petitioner is that the report of the Vigilance Cell has not been furnished to him. 2.2. For the charges, the petitioner has submitted his explanation on 16.4.2003. His explanation mainly appears to be that even though he was appointed as a Bill Clerk in the godown, there is Supervisor attached to the godown, who is having the supervisory power over all the functions in the godown. During the relevant point of time, according to the petitioner, he was put on additional charge of watching the entire godown, since the watchman on duty was on leave and it was in those circumstances, it was not possible for him to perform both the functions and without his knowledge the mistake has occurred. 2.3. The Superintendent of the second respondent/Corporation was appointed as an Enquiry Officer and he submitted his report on 18.5.2003. A reference to the report of the Enquiry Officer, which is filed in the type set of papers, shows that the Enquiry Officer has simply relied upon the statement made by the petitioner during the time of oral enquiry and then based on the same, he has come to a conclusion that both the charges against the petitioner are not proved. 2.4. However, the second respondent/Disciplinary Authority, with an intention to differ from the views of the Enquiry Officer, has issued a memo on 30.5.2003 enclosing the differed findings and called for explanation. Pursuant to that, the petitioner has submitted his explanation on 24.6.2003 and thereafter, the second respondent has passed the impugned order on 7.8.2003 imposing the major punishment of stoppage of increment for a period of two years with cumulative effect. 2.5. It was against the order of the second respondent, the petitioner filed an appeal as per the Regulations to the first respondent on 13.10.2003 and the first respondent has rejected the appeal under the impugned order dated 1.3.2004. Even though the https://hcservices.ecourts.gov.in/hcservices/ first respondent/ Appellate Authority has rejected the appeal and confirmed the punishment imposed on the petitioner, the Appellate Authority has accepted with the second respondent only in respect of the first charge, while accepting the report of the Enquiry Officer in respect of the second charge, exonerating the petitioner. In spite of such different finding, the first respondent/ Appellate Authority has chosen to impose the same punishment, which was imposed by the second respondent/Disciplinary Authority. 2.6. Both the orders are challenged by the petitioner on the main ground that the second respondent/Disciplinary Authority, as per the Regulations, has no power to differ from the views of the Enquiry Officer. In the absence of specific power conferred under the Regulations, the action of the second respondent/Disciplinary Authority in differing from the views of the Enquiry Officer is not valid in law and consequently, the entire proceedings are vitiated. 3.1. Mr.V.Sanjeevi, learned counsel for the petitioner would also add that even assuming that the second respondent is empowered to differ from the views of the Enquiry Officer, in the context that the Enquiry Officer has given a finding in favour of the petitioner, in all fairness the second respondent should have conducted a fresh enquiry by giving opportunity to the petitioner, so as to let in evidence. 3.2. It is his further submission that even in the original proceedings, while the Enquiry Officer has conducted the enquiry, he has not directed the Corporation to let in evidence, but on the other hand, the original report of the Enquiry Officer itself is based on the statement given by the petitioner as a delinquent and that is against the procedure contemplated and is a violation of the principles of natural justice. 4.1. On the other hand, it is the contention of Mr.M.Devadoss, learned counsel for the respondents that under the Regulations a specific power of differing from the views of the Enquiry Officer is available and even otherwise, after the amendment to the Regulations made in the year 2008, such power has been specifically vested. It is his contention that even in the absence of such amendment, a power is available on the part of the Disciplinary Authority to differ from the views. 4.2. It is his further contention that the petitioner, having participated in the enquiry originally conducted by the Enquiry Officer and having accepted the report of the Enquiry Officer, cannot go back now and say that a further enquiry should be conducted and that is also the stand of the respondent/Corporation in the counter affidavit. https://hcservices.ecourts.gov.in/hcservices/ 4.3. It is also contended, as also found in the counter affidavit, that the conduct of the petitioner in affixing his signature without objection in respect of the weighment slips about which there has been discrepancy shows that the petitioner has deliberately given a statement as if there was 100% weighment. It is also his submission that the conduct of the petitioner was in collusion with the loadmen for the obvious reasons. 4.4. It is also his submission that on the said date there was no heavy transaction and on inspection it was found that the irregularities have been committed and it resulted in loss to the Corporation in respect of the Public Distribution System. 4.5. It is also his case that the petitioner has in fact admitted about the guilt and therefore, there is no question of any further chance to be given to the petitioner. 5. As far as the primary submission made by the learned counsel for the petitioner about the power of the second respondent/Disciplinary Authority in differing from the views of the Enquiry Officer, as submitted by the learned counsel for the respondent/Corporation, a reference to the procedure as originally stood in the Regulations in clear terms shows that the second respondent, being the authority competent to impose penalty, has a right to differ from the views of the Enquiry Officer. The procedure is contemplated under Regulation 4 of the Regulations in Chapter V, which relates to Disciplinary Proceedings, Penalties and Appeal Regulations. As stated above, the punishment of withholding of increment with cumulative effect for a specific period is categorized as a major penalty under Regulation 1(b)(i) of the Regulations. 6. Regulation 4 of the Regulations, which speaks about the procedure to award major penalties, states in clear terms in one of the paragraphs as follows: "On receipt of the findings report of the enquiry officer, the competent authority to impose the penalty shall forward a copy of the findings report to the delinquent requiring him to file his further explanation within a reasonable time (to be specified). The further explanation, if received in time, shall be examined in detail with reference to every point raised therein and after perusing the entire records including the record of enquiry, the analysis of evidence and the findings of the enquiry officer. The authority competent to impose the penalty shall decide whether each and every charge could be held proved or otherwise." https://hcservices.ecourts.gov.in/hcservices/ 7. As submitted by the learned counsel for the respondents, it is the right and jurisdiction of the competent authority, who is empowered to impose major penalty, to decide as to whether every charge is held proved or otherwise. When such power is available, it means that it is the decision of the Disciplinary Authority while referring to the report of the Enquiry Officer. Therefore, it is only on receipt of the report of the Enquiry Officer, the Disciplinary Authority decides as to whether every charge is held proved or otherwise. It no doubt confers a power on the Disciplinary Authority to differ from the views of the Enquiry Officer. 8. But the real issue is not as to whether the Disciplinary Authority is empowered to differ from the views of the Enquiry Officer or not. On the facts of the present case, as stated earlier, on a reading of the said Regulations, as stood originally, it is clear that the Disciplinary Authority is empowered to differ from the views of the Enquiry Officer. This view is also fortified by the fact that by the subsequent amendment which has come into effect from 4.3.2008, such power has been specifically given to the Disciplinary Authority, which is as follows: "On receipt of the findings of the Enquiry Officer, the immediate supervisory officer as well as higher authorities shall forward a copy of the findings report to the delinquent requiring him to file his further explanation within a reasonable time (to be specified). If the Enquiry Officer held the charge as not proved, but the disciplinary authority finds that there are materials to prove the charge and disagree with the Enquiry Officer he has to send a copy of the report of the enquiry to the delinquent along with differed view of the disciplinary authority to the delinquent for submitting his further explanation on the differed view before disciplinary authority finally passes orders on the disciplinary proceedings. The further explanation, if received in time, shall be examined in detail with reference to every point raised therein and after perusing the entire records including the record of enquiry, the analysis of evidence and the findings of the Enquiry Officer. The authority competent to impose the penalty shall decide whether each and every charge could be held proved or otherwise." In such circumstances, there is no need to dwell upon the said contention raised by the learned counsel for the petitioner about the competency of the Disciplinary Authority for differing from the views of the Enquiry Officer. 9. As stated earlier, after the second respondent has differed https://hcservices.ecourts.gov.in/hcservices/ from the report of the Enquiry Officer, what has to be followed is as mandatorily required under Regulation 4(a) in respect of the major penalties, which states as follows: "4. Procedure to award major penalties: (a) The competent authority as per Regulation 2, may either suo moto or on receipt of report as per explanation under that regulation or as indicated in Regulation 3 shall issue a memo recording the basis of charge, quoting the relevant rules or instructions omitted to be followed, the consequent result of such omission with specific charges suitably framed and the delinquent should be informed of the list of documents relied upon as the basis of charge, the list of witnesses whose versions also form the basis of the charge. The delinquents should then be required to furnish the list of witnesses if any on his defence within a reasonable time failing which the presumption would be that he has no witnesses to his defence. The competent authority to impose the Major penalty thereon shall appoint an enquiry officer, immediately subordinate to him (punishing authority) to conduct an objective enquiry into the charges in the presence of the delinquent who should have been given due notice therefor. At the enquiry the documents relied upon in the charge memo should be made available to the delinquent for perusal. The delinquents may also be permitted to peruse any other record of the Corporation that are relevant to the charges, if he/she so desires. If for any reasons such records, desired to be perused, are considered to be not relevant to the charges, the enquiry officer shall record so in his findings. So also the witnesses whose versions from the basis of the charges should be examined providing opportunity to the delinquent to cross examine. Thereon the witnesses produced by the delinquent should be examined with due relevance to the charges. The delinquent may also be permitted to file his written statement." Therefore, it is clear that the Enquiry Officer has to, at the first instance, make the department to produce documents and witnesses to substantiate the charges levelled against the delinquent, which is available as per the Regulations explicitly. 10. Even otherwise the law relating to disciplinary proceedings is well settled that in the disciplinary proceedings the enquiry has to be conducted in a manner which is in conformity with the https://hcservices.ecourts.gov.in/hcservices/ principles of natural justice, which contemplates that at the first instance the department has to let in any evidence and substantiate with record the charges framed against the delinquent and it is thereafter the delinquent has to be allowed to cross examine such witnesses and it is only afterwards the question of delinquent letting in his evidence before the Enquiry Officer would arise. At no circumstance the service law permits the department to rely upon the statement of the delinquent and proceed to impose punishment on him. This view is also fortified by the judgment of the Supreme Court in State of Uttaranchal and others v. Kharak Singh, [2008] 8 SCC 236, wherein after analyzing the entire issue as to how the disciplinary proceeding has to be conducted, by placing reliance on the earliest judgment on the issue, namely ECIL v. B.Karunakar, [1993] 4 SCC 727 and referring to plethora of judgments on this issue, the Supreme Court has ultimately crystallized the principles to be followed in the disciplinary proceeding as follows: "15. From the above decisions, the following principles would emerge: i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. iii) In an enquiry, the employer /department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any." (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ 11. On the facts of the present case it is clear that the said noble procedure has not been followed even originally by the Enquiry Officer. When once the second respondent has decided to differ from the report of the Enquiry Officer, whose report is of course in the favour of the delinquent, necessarily at least at that stage the second respondent should have followed the procedure by giving opportunity to the petitioner, by letting in evidence, either by conducting enquiry himself or by appointing Enquiry Officer. In the absence of such procedure having been followed, even though the second respondent is certainly entitled to differ from the views of the Enquiry Officer, I am of the considered view that the matter has to be remanded to the second respondent for fresh enquiry so as to give adequate opportunity to the petitioner and to come to a final conclusion. It is unfortunate that even the first respondent/Appellate Authority has not taken note of the said deficiency. In such view of the matter, the writ petition is allowed and the impugned orders passed by respondents 1 and 2 are set aside and the matter is remanded to the second respondent with a direction to the second respondent either to conduct enquiry by himself or by appointing an Enquiry Officer by following the procedure laid down by the Supreme Court and pass appropriate orders. Such orders shall be passed by the second respondent within a period of six months from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To 1. The General Manager (Administration) Tamil Nadu Civil Supplies Corporation Ltd. Head Office, 14, Thambusamy Road Kilpauk, Chennai – 600 010. https://hcservices.ecourts.gov.in/hcservices/ 2. The Regional Manager Tamil Nadu Civil Supplies Corporation Ltd. Namakkal Region Namakkal. Copy to : The Section Officer, VR Section,High Court,Madras. +1cc to Mr.V.Sanjeevi, Advocate Sr 83762 BVN(CO) km/8.12. W.P.No.24776 of 2004 https://hcservices.ecourts.gov.in/hcservices/