IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.02.2011 CORAM: THE HONOURABLE MR.JUSTICE S. MANIKUMAR W.P.No.2456 and 12108 of 2010 M.Muthu Anand ... Petitioner in both W.Ps., Vs. 1. The Principal Secretary and Secretary to Government, Home (Transport) Department, Fort St. George, Chennai-9. 2. The Transport Commissioner, Chepauk, Chennai. ... Respondents in both W.Ps., Prayer in W.P.No.2456 of 2010: This Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari, to call for the records of the respondents in connection with the impugned order passed by the first respondent in G.O.(D)No.1133, Home (Transport II) Department, dated 09.11.2009 and quash the same. Prayer in W.P.No.12108 of 2010: This Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus, directing the respondents to consider the claim of the petitioner for promotion as Deputy Transport Commissioner for the panel of the year 2009-10 without reference to the punishment imposed by the first respondent in G.O.(D)No.1133, Home (Transport-II) Department, dated 09.11.2009 and promote him as Deputy Transport Commissioner with all consequential service. For Petitioner : Mr.K.Venkataramani, SC for Mr.M.Muthappan For Respondents : Mrs.Lita Srinivasan, Government Advocate O R D E R During the tenure of the petitioner as Regional Transport Officer, Virudhunagar, a surprise inspection was conducted by one Thiru.R.Thomas, an Assistant attached to the office of the Deputy Inspection Cell Officer, Ramanathapuram, on 25.10.2005 along with the Deputy Superintendent of Police, Department of Vigilance and Anti-Corruption, Virudunagar, and based on the report, the Transport Commissioner, Chennai, the 2nd respondent herein, issued a charge memo, dated 25.04.2006 to the petitioner, under rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, to wit that, the petitioner in allowing one Thiru.Ramkumar, a private individual to work unauthorisedly from the year 2000 onwards, for typing work, given him access to official records and thus failed to maintain absolute integrity and devotion to duty and conducted himself in a manner of unbecoming of a Government Servant. Responding to the charge memo, the petitioner submitted a written representation dated 12.06.2006 denying the charges. The 2nd respondent, on receipt of the abovesaid explanation, by order dated 23.03.2007 appointed the Deputy Transport Commissioner, Salem, to conduct an enquiry into the allegations and submit a report. The enquiry officer held that the charges levelled against the petitioner as not proved. Thereafter, the disciplinary authority, Principal Secretary and Secretary to Government, Home (Transport) Department, Chennai, the 1st respondent herein, by proceedings dated 08.07.2008, disagreed with the findings of the enquiry officer and held that the charges framed against the petitioner as proved. By enclosing the copy of the enquiry officer's report and his dissenting note, the disciplinary authority has called for further representation. In response to the show cause notice, the petitioner submitted a further representation on 25.05.2009, in which, he has put forth valid reasons and requested the disciplinary authority to accept the enquiry officer's report and prayed to drop further action. But the 1st respondent without considering the reply in proper perspective, has passed the impugned order in G.O (D) No.1133, Home (Tr-II) Department, dated 09.11.2009, holding the charges as proved and imposed a punishment of stoppage of increment for a period of one year with cumulative effect intended to affect his pension. Being aggrieved by the same, the petitioner has come forward with the present writ petition in W.P.No.2456 of 2010. In the mean time, the first respondent has prepared a panel of Regional Transport Officers fit for promotion as Deputy Transport Commissioner for the year 2009-10. Therefore, the petitioner has filed another writ petition in W.P.No.12108 of 2010, seeking for promotion as Deputy Transport Commissioner in the panel for the year 2009-10, without reference to the punishment imposed in G.O.(D)No.1133, Home (Transport II) Department, dated 09.11.2009. 2. Assailing the correctness of the order, Mr.K.Venkataramani, Learned Senior Counsel for the petitioner submitted that the petitioner was joined the office of the Regional Transport Officer, Virudhunagar, only in the year 2002, whereas, the Disciplinary Authority, without considering the records properly has mechanically held that the petitioner was responsible for allowing a private individual from 2000 onwards and therefore non-application of mind, on the part of the disciplinary authority, is per se apparent and hence the impugned proceedings are liable to be set aside. He further submitted that the procedure followed by the 1st respondent while disagreeing with the views of the enquiry officer is in total violation of principles of natural justice, in that, the disciplinary authority while disagreeing with the findings of the enquiry officer has straightaway held that the charges levelled against the petitioner as proved. According to the Learned Senior Counsel, if the disciplinary authority intends to disagree with the findings recorded by the enquiry officer then, he should record his tentative reasons for disagreement and thereafter, provide an opportunity to the delinquent officer to represent on the tentative reasons, before recording any finding on the charges. 3. Taking this Court through the dissenting note of the 1st respondent, Learned Senior Counsel further submitted that there is a pre-determined mind on the part of the disciplinary authority and in such circumstances, calling for further representation on the dissenting note is nothing but an empty formality. As regards the procedure to be followed, while disagreeing with the findings of the enquiry officer, he placed reliance on a Division Bench Judgment of this Court in P.Govindan Vs. State of Tamil Nadu represented by the Secretary to Government, Rural Development (E6) Department, The Director of Rural Development, The Collector of Cuddalore District and The Registrar, Tamil Nadu Administrative Tribunal, reported in (2006) 1 MLJ 624. 4. Referring to the list of witnesses cited, Learned Senior Counsel for the petitioner submitted that out of three witnesses cited on behalf of the department, two of them alone were enquired and after considering the evidence, the enquiry officer found that the charges against the petitioner were not substantiated and therefore, held as not proved. But the disciplinary authority, relying on the statements of Personal Assistant and two other Superintendents in the office of the Regional Transport Officer, Virudhunagar, obtained during preliminary enquiry, has come to an erroneous conclusion, holding that the charges as proved. He submitted that there is not only a procedural error, but by taking into consideration, the statements obtained behind the back of the petitioner, there is a violation of the principles of natural justice, in that, they were not examined in the oral enquiry. In this context, he placed reliance on a decision of this Court in K.Ramalingam v. Superintendent of Police reported in 2009 (7) MLJ 578. 5. Based on the counter affidavit filed by the Special Secretary to Government, Home (Transport.II) Department, Secretariat, Chennai, Mrs.Lita Srinivasan, learned Government Advocate, submitted that while the petitioner was functioning as a Regional Transport Officer, Virudhunagar, a surprise check was conducted by the Vigilance and Anti-Corruption Department, along with District Inspection Cell authorities of Ramanathapuram, on 25.10.2005 at 17.00 hours and certain irregularities were found, to wit that the petitioner had allowed one Thiru.R.Ramkumar, a private individual, to work unauthorisedly in his office from the year 2000 onwards, for typing work and given him access to official records and thus failed to maintain absolute integrity and devotion to duty and conducted himself in a manner of unbecoming of a Government Servant. She further submitted that charges were framed against the petitioner under rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. As the petitioner did not admit the charges, an enquiry officer was appointed. He submitted a report holding that the charges levelled against the petitioner, as not proved. Since the findings of the enquiry officer are only advisory in nature and not binding on the disciplinary authority, who can disagree with the report and come to his own conclusion on the assessment of evidence on record, the disciplinary authority has examined the charges framed against the petitioner, the explanation, finding of the enquiry officer and came to a prima facie conclusion that the charges as proved. Therefore, along with the dissenting note and the copy of the enquiry officer's report, the disciplinary authority issued a show cause notice dated 08.07.2008 calling upon the petitioner to show cause. Thereafter, when the disciplinary authority considered the entire records, he found that the enquiry officer did not deny the unauthorised employment of a private individual in the office of the Regional Transport Officer, Virudhunagar, from the year 2000 onwards and that when the Personal Assistant and two other Superintendents in the office of the Regional Transport Officer, Virudhunagar, have admitted the unauthorised employment of a private individual in the said office, to do typing work, due to heavy official work from 17.01.2002 to 25.10.2005, the disciplinary authority has rightly exercised his authority and discretion as per the rules. 6. Referring to the evidence let in by PW1-Thiru.R.Thomas and PW2-Thiru.M.R.Manamathapandian, learned Government Advocate, further submitted that when some evidence is available on record to come to a prima facie conclusion that a private individual was allowed to work in the office of the Regional Transport Officer, Virudhunagar, the finding recorded by the disciplinary authority cannot be said to be perverse warranting interference. It is also her further contention that the reasons for deviation from the findings of the Inquiry Officer cannot be said to have been made without any basis, when the statements are already on record and in such circumstances, she submitted that adequacy of the evidence for arriving at the conclusion of guilt against the petitioner, cannot be canvassed by the writ petitioner. She also submitted that adequate opportunity has been given to the writ petitioner in the disciplinary proceedings and when the further representation of the petitioner, on the tentative findings recorded by the disciplinary authority, was put on notice and considered, there is no violation of any procedure or principles of natural justice. She further submitted the fact that a private individual had been permitted to work in the office of the Regional Transport Officer, Virudhunagar, has been proved and in such circumstances, imposition of appropriate penalty of stoppage of increment for a period of one year with cumulative effect with an intend to have an effect on the pension of the petitioner, cannot be said to be disproportionate to the charges, warranting interference. Learned counsel for the State further submitted that the decisions relied on by the petitioner are not applicable to the facts of this case. For the abovesaid reasons, she prayed to sustain the impugned order. Heard the learned counsel for the parties and perused the materials available on record. 7. In Punjab National Bank v. Kunj Behari Misra reported in 1998 (7) SCC 84, the Supreme Court held that Article 311(2) of the Constitution of India mandates the Disciplinary Authority to give an opportunity of representation to the charged employee on the findings. While explaining the principles laid down in Managing Director, ECIL v. B.Karnakar reported in 1993 (4) SCC 727, on the aspect of principles of natural justice, in furnishing a copy of the enquiry officer's report, with an opportunity to the delinquent officer to submit his further representation on the report and in the case of disagreement with the enquiry officer's report, the Supreme Court, at Paragraphs 18 and 19, held as follows: "18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is 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 enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officers report 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 enquiry as explained in Karunakar's case. 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry 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 report of the enquiry 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 enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a 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." (emphasis supplied) 8. In Yoginath D.Bagde v. State of Maharastra reported in 1999 (7) SCC 739, Rule 9(2) of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979, which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority, came up for consideration and as per the said Rule, the Disciplinary Authority shall record its reasons for such disagreement. In that case, following an unsuccessful trap, disciplinary proceedings were initiated against the judicial officer, alleged to have involved in corrupt practice. The Inquiring Authority held that the charges as not proved. But the Disciplinary Committee of the High Court disagreed with the findings of the Inquiring Authority and held that the charges as proved. Minutes of the Disciplinary Committee were as follows: "Discussed. For the reasons recorded in Annexure 'A' hereto, the Committee disagrees with the findings of the Enquiry Officer and proved. It was, therefore, tentatively decided to impose upon the Judicial Officer penalty of dismissal from service. Let notice, therefore, issue to the delinquent Judicial Officer calling upon him to show cause why penalty of dismissal from as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, should not be imposed upon him. Show cause notice will be accompanied by a copy of the Report of the Inquiring Authority and the reasons recorded by this Committee." 9. The delinquent therein filed his reply to the show cause notice. Thereafter, acting on the recommendations, the Government dismissed the judicial officer, against which, the appellant therein filed a Writ Petition, which was also dismissed. When the matter taken on appeal to Supreme Court, one of the contentions raised was that there was violation of the principles of natural justice that, before recording its findings on the charges, the Disciplinary Authority did not give an opportunity of hearing to the delinquent officer. Rule 9 of the abovesaid Rules deals with how action has to be taken on the enquiry report and it is reproduced hereunder for the purpose of understanding as to how the disciplinary authority has to proceed with, when he disagrees with the findings of the enquiry officer. "9. Action on the enquiry report.(1) The disciplinary authority, if it is not itself the enquiring authority may, for reasons to be recorded by it in writing, remit the case to the enquiring authority for further enquiry and report, and the enquiring authority shall thereupon proceed to hold the further enquiry according to the provisions of Rule 8 of these rules as far as may be. (2) The disciplinary authority shall if it is not the enquiring authority, consider the record of the enquiry and record its findings on each charge. If it disagrees with the findings of the enquiring authority on any article of charge, it shall record its reasons for such disagreement. (3) * * * (4)(i) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the major penalties should be imposed on the government servant, it shall (a) furnish to the government servant a copy of the report of the enquiry held by it and its findings on each article of charge, or, where the enquiry has been held by an enquiring authority appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge expressly stating whether or not it agrees with the findings of the enquiry authority, together with brief reasons for its disagreement, if any, with the findings of the enquiring authority; and (b) give to the government servant a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the enquiry held under Rule 8 of these rules. (ii)(a)-(b) * * * (iii) Where it is not necessary to consult the Commission, the disciplinary authority shall consider the representation, if any, made by the government servant in pursuance of the notice given to him under clause (i)(b) of this sub-rule and determine what penalty, if any, should be imposed on him on the basis of the evidence adduced during the enquiry held under Rule 8 and make such order as it may deem fit. 10. Having regard to the procedure set out in the abovesaid Rule and considering the aspect of violation of principles of natural justice alleged, the Supreme Court considered as to when a delinquent officer is required to be given an opportunity of hearing or making his representation, on the tentative reasons, when the Disciplinary Authority disagrees with the findings of the Enquiry Officer. At Paragraphs 28 and 29, the Supreme Court, held as follows: "28. In view of the provisions contained in the statutory rule extracted above, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, an opportunity of hearing may have to be read into the rule by which the procedure for dealing with the enquiring authoritys report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be not guilty by the enquiring authority, is found guilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of not guilty has already been recorded. 29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the disciplinary authority to disagree with the findings of the enquiring authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. But the requirement of hearing in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the TENTATIVE reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of not guilty already recorded by the enquiring authority was not liable to be interfered with. 31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the