IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.24307, 24330 of 2009 and 8131 of 2010 D.Veerasekaran ... Petitioner in W.P.No.24307 / 2009 I.Muthukumaran ... Petitioner in W.P.No.24330 / 2009 S.Muruganantham ... Petitioner in W.P.No.8131 / 2010 versus 1.The Managing Director TASMAC, Head Office, 4th Floor, CMDA Tower – 2, Egmore, Chennai – 8. 2.The Senior Regional Manager Trichy Region, TASMAC, Trichy. 3.The District Manager TASMAC, Thiruvarur. ... Respondents in all WPs' PRAYER: Writ petitions filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records from the 3rd respondent pertaining to the impugned dismissal order Na.Ka.No.214/2008/A1 dated 13.02.2009 and its consequential orders Na.Ka.Nos.6808/08 (U) and 6809/08(U) respectively dated 28.04.2009 and Na.Ka.Nos.7758/R1/2009 dated 19.10.2009 and 7756/R1/2009 dated 26.12.2009 respectively passed by the 2nd and 1st respondent respectively and quash the same and to consequently direct the 3rd respondent to reinstate the petitioners with backwages, continuity of service and all other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner (in all WPs') : Mr.P.Vijendran For Respondents : Mr.J.Ravindran COMMON ORDER The petitioners are the employees of TASMAC Shop No.9639 coming under Tiruvarur Taluk. 2.The petitioner in W.P.No.24330 of 2009 was a Shop Supervisor and the petitioners in W.P.Nos.24307 of 2009 and 8131 of 2010 were Salesman in the said shop. All the three petitioners were dismissed from service by the order dated 13.02.2009, passed by the District Manager, Tiruvarur, the third respondent herein. 3.The charge against the petitioners was that they were responsible for misappropriating a sum of Rs.2,70,707/- from the TASMAC shop. They were also suspended by the third respondent by an order dated 07.03.2008. Subsequently, an enquiry was conducted against the petitioners and the Enquiry Officer by his report dated 16.08.2008 held that the charge levelled against the petitioners was not found proved. After getting the report from the Enquiry Officer, the third respondent herein, without giving any further opportunity to the petitioners to put forth their defence, disagreed with the said enquiry report and held that it has been proved beyond reasonable doubt that the petitioners have committed misappropriation to the tune of Rs.2,70,707/-. Therefore, he passed the order of dismissal against the petitioners on 13.02.2009. As against the said dismissal, the petitioners preferred an appeal before the Senior Regional Manager, Trichy. The Appellate Authority rejected the appeal, but however, informed them that they can always make a further revision to the Managing Director. Accordingly, the petitioners preferred further revision petitions before the first respondent – Managing Director of TASMAC and the same was also rejected on 19.10.2009 and 26.12.2009. Neither in the appeal nor in the revision, the authorities considered the flaw in the enquiry that the petitioners were not heard on the dissent note put up by the third respondent – District Manager and it was presumed in both the orders that the enquiry was held properly. There is total non- application of mind on the part of the respondents. Therefore, aggrieved by the same, the petitioners have filed the present writ petitions. https://hcservices.ecourts.gov.in/hcservices/ 4.The writ petitions in W.P.Nos.24307 and 24330 of 2009 were admitted on 26.11.2009. It is subsequently when the writ petition in W.P.No.8131 of 2010 came up for hearing on 21.04.2010, the same was directed to be posted along with the above said two writ petitions. 5.The respondents – TASMAC has filed separate counter affidavits dated nil in respect of W.P.Nos.24307 and 24330 of 2009. With reference to the objection that the petitioners were not heard on the dissent note put up by the Disciplinary Authority, namely the third respondent, in para No.6, it has been averred as follows: "6.That the enquiry report carefully pursued by then TASMAC District Manager of Thiruvarur and he was not get satisfaction about the enquiry report against the above said petitioner Muthukumaran for the reasons that of the above said petitioner and the other three about said salesmen in the above said retail shop were criminally misappropriated the TASMAC funds and misuse the rights and duties and they all knowingly caused loss of TASMAC Ltd assets. So, then TASMAC District Manager of Thiruvarur dismissed the above said petitioner and the above said three salesmen from their job." It is also claimed in the counter affidavit that the criminal case is also pending against the petitioners in respect of the same incident. However, in the present case, this Court is only consent with the disciplinary action, which has resulted in the removal of petitioners from service. 6.This Court also directed the original file to be produced and accordingly the same was circulated. It was found that no opportunity was given to the petitioners before the Disciplinary Authority disagreeing with the findings of the Enquiry Officer. 7.In this context, it is necessary to refer to the judgment of the Supreme Court in LAV NIGAM VS. CHAIRMAN & MD, ITI LTD., AND ANOTHER reported in 2006 (9) SCC 440 and it is relevant to refer to the following passage found in para Nos.9 to 14. "9. Challenging the orders of the respondent authorities the appellant filed a writ petition before the High Court. The appellant specifically https://hcservices.ecourts.gov.in/hcservices/ raised the issue that the disciplinary authority was obliged to give a separate show-cause notice if the disciplinary authority differed with the inquiry officer. The High Court also held that there was no need to give two separate show-cause notices one before the disciplinary authority found against the employee while differing with the view of the inquiry officer, and another against the proposed punishment. It was further held that the two notices could be combined in one. The writ petition was accordingly dismissed. 10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed. 11. In Punjab National Bank v. Kunj Behari Misra a Bench of this Court considered Regulation 7(2) of the Punjab National Bank Officer Employees’ (Discipline and Appeal) Regulations, 1977. The Regulation itself did not provide for the giving of any notice before the disciplinary authority differed with the view of the enquiry officer. This Court held: (SCC p.97, para 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 https://hcservices.ecourts.gov.in/hcservices/ 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.” 12. This view has been reiterated in Yoginath D. Bagde v. State of Maharashtra. In this case also Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The Court said: (SCC p.758, para 29) “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 https://hcservices.ecourts.gov.in/hcservices/ 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.” 13. We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside. 14. The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the appellant indicating his tentative disagreement with the findings of the inquiry officer." 8.In the light of the above precedents and the factual matrix involved in this case, all the three writ petitions stand allowed and the impugned orders stand set aside. It is open to the third respondent to proceed against the petitioners, in accordance with law, as directed by the Supreme Court. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. TK To 1.The Managing Director TASMAC, Head Office, 4th Floor, CMDA Tower – 2, Egmore, Chennai – 8. https://hcservices.ecourts.gov.in/hcservices/ 2.The Senior Regional Manager Trichy Region, TASMAC, Trichy. 3.The District Manager TASMAC, Thiruvarur. 1 cc to Mr.J. Ravindran, Advocate, SR. 27735 W.P.Nos.24307, 24330 of 2009 and 8131 of 2010 TRM (CO) kk 4/5 https://hcservices.ecourts.gov.in/hcservices/