IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.27374 of 2010 & M.P.Nos. 1 to 3 of 2010 S.NEDUNCHEZHIAN [ PETITIONER ] Vs THE SPECIAL COMMISSIONER AND THE TRANSPORT COMMISSIONER CHEPAUK CHENNAI- 5. [ RESPONDENT ] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the proceedings of the respondent in MEMO.R.NO.33259/VB1/2007 dated 6.8.2010 and proceedings in R.No.33259/VB1/2007 dated 1.11.2010 and quash the same with the consequential direction directing the respondent to consider the name of the petitioner for promotion to the post of Superintendent with all attendant and monetary benefits, For Petitioner :: Mr.V.Ravikkumar For Respondent :: Mr.R.Murali, G.A O R D E R The petitioner was employed as an Assistant in the office of the Motor Vehicles Inspector, Myladuthurai. He has come forward to challenge orders passed by the Special Commissioner and Transport Commissioner, Chennai dated 6.8.2010 and also 1.11.2010. After setting aside the same, he seeks for a direction to the respondent to promote him to the post of Superintendent with all attendant benefits. 2. When the matter came up on 2.2.2010, notice was directed to be served on the learned Government Advocate. Accordingly notice was served and he had taken notice for the respondent. On such direction, the respondent has also filed a counter affidavit dated 25.3.2011. https://hcservices.ecourts.gov.in/hcservices/ 3. The facts leading to the filing of the case are as follows: (3.1) The petitioner was issued with a charge memo under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules for the various acts of omissions and commission indulged by him. It was noted that when he was duty in Mannargudu Unit office and on 14.2.2005 a surprise check was made and certain amounts were recovered. The petitioner gave his explanation on 20.11.2007. Thereafter, an enquiry was ordered to be conducted by the Regional Transport Officer, Karur-5. It transpires after completion of the enquiry, the enquiry officer had submitted a report holding that the charges were not proved. (3.2). The respondent vide proceedings dated 11.12.2009 has informed that the petitioner, though his name was included in the panel fit for promotion to the post of Superintendent for the year 2009-2010 was not to be promoted and his name was deferred on account of the fact that charges are still pending enquiry. The petitioner filed a Writ Petition before this Court being W.P.No.26789 of 2009 seeking for a direction to the respondent to complete the departmental enquiry. It is pursuant to the said direction, the impugned order dated 6.8.2010 came to be passed by the respondent. (3.3) In the impugned order, the respondent enclosed a copy of the enquiry report and thereafter in paragraphs 2 to 4, he had stated as follows: "2. On a careful consideration of the report of the Inquiry Officer aforesaid, the undersigned disagrees with the findings of the Inquiry Officer for the reasons stated in the Annexure (enclosed) to this memo hold that the charge held by the Inquiry Officer as "Not proved" is held as "Proved". 3. Thiru S.Nedunchezhian, Assistant, now unit office Myiladuthurai is hereby given an opportunity of making further representation on the condition arrived on findings of the above said Inquiry Officer, referred to in para 2 above. 4. If the said Thiru S.Nedunchezhian, Assistant, now Unit Office Myiladuthurai fail to submit their further representation within 15 days from the date of receipt of this Memo, it will be presumed that they have no representation to make and further action will be taken on merits of the case." Along with the said impugned order, in an annexure appended, the respondent also gave the reason for disagreeing with the enquiry report. The petitioner sent a representation dated 17.8.2010. https://hcservices.ecourts.gov.in/hcservices/ (3.4) Pursuant to the said representation, the impugned order dated 1.11.2010 came to be passed by the respondents. In that order, the respondent had stated as follows: "The Inquiry Officer, who was appointed to inquire into the charges has submitted his findings that the charges held against the charged officials have Not Proved. The disciplinary authority has not accepted the findings of the Inquiry Officer. Now, therefore, the undersigned considers to inquire this charges again and here by appoints Thiru G.Ramasamy, Regional Transport Officer, Karur as inquiry officer to inquire into the charges framed against them. The said inquiry officer is directed to conduct the inquiry following the procedure laid down in rule 17(b) of Tamil Nadu Civil Service (Discipline and Appeal) Rules and send report within 3 months. Challenging these two orders, the Writ Petition came to be filed as noted above. 4. In the counter affidavit filed by the respondent, in response to the allegations, in paragraph 7 it was answered as follows: "7.As regards the averments in paragraphs 8 and 9 of the petitioner's affidavit, it is submitted that in obedience to the orders of this Hon'ble Court dated 15.7.20201 in W.P.No.26789 of 2009, after receipt of the findings from the Enquiry Officer, the disciplinary authority examined the findings of the Enquiry Officer along with the records produced and deviated from the findings of the Enquiry Officer that the Enquiry Officer concluded the enquiry based on the explanations of the Accused Officers and not on the examination of the witnesses and the records produced before him. Therefore, further representation of the charged official, called for as per the procedures in this disciplinary proceedings. Since the petitioner did not add any new points to prove his innocence, the Transport Commissioner appointed Thiru G.Ramasamy, Regional Transport Officer,Karur as Inquiry Officer to inquire into the charges framed against the petitioner. Against this, the petitioner preferred the present Writ Petition. https://hcservices.ecourts.gov.in/hcservices/ 5. The short question that arises for consideration is whether the respondent was right in ordering a fresh enquiry only on the ground that the enquiry report submitted by the enquiry officer was not acceptable to him and that he has his own reasons to differ. 6. The respondent being a disciplinary authority nothing prevents him from disagreeing with the enquiry report and to give his own findings on the materials collected by the enquiry officer. On the other hand after sending a copy of the enquiry report and after holding that he had disagreed with the enquiry report, curiously the respondent went on tangent and ordered for a fresh enquiry by appointing a new enquiry officer. 7. But, the Tamil Nadu Civil Services (Discipline and Appeal) Rules did not contemplate such a procedure being adopted by the disciplinary authority. In case the enquiry officer's findings are not palatable to the competent authority, the only course open to the respondent is to record his dissent note and decide the matter in accordance with law thereafter. It is not a case where the respondent had stated that certain vital evidence have been left out or any additional evidence has to be called for by the enquiry officer. On the other hand, the earlier enquiry initiated against the petitioner was totally derailed and a fresh enquiry officer is appointed without any authority or law. 8. In this context, Mr.V.Ravikumar, learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in K.R.DEB VS. THE COLLECTOR OF CENTRAL EXCISE, SHILLONG REPORTED IN 1971 (2) SCC 102. The said judgment more or less arose under similar circumstances but under the Central Civil Services (Classification, Control and Appeal) Rules. In analyzing those Rules, in paragraphs 12 and 13 the Supreme Court had observed as follows: 12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. https://hcservices.ecourts.gov.in/hcservices/ 13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. 9. In the light of the binding precedent and the factual matrix of the case, this Court is obliged to interfere with the impugned order. Hence, the impugned orders dated 6.8.2010 and 1.11.2010 stand set aside. The Writ Petition stands allowed. However, this will not preclude the respondent from proceeding with the matter in accordance with law. Any such decision shall be taken within a period of eight weeks from the date of receipt of a copy of this order and the result shall be communicated to the petitioner. Depending upon the outcome, the question of the promotion of the petitioner will be considered. No costs. The connected Miscellaneous Petitions are closed. ajr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To THE SPECIAL COMMISSIONER AND THE TRANSPORT COMMISSIONER CHEPAUK CHENNAI- 5. + 1 cc to Government Pleader, SR No.29631 + 1 cc to Mr. V. Ravikkumar, Advocate SR No.29406 LA(CO) SR/13.5.2011 W.P.No.27374 of 2010 https://hcservices.ecourts.gov.in/hcservices/