IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.03.2010 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.21413 of 2004 S.Mohandass ...Petitioner Versus 1.The Chairman Chennai Port Trust, Chennai-600001. 2.The Deputy Chairman Chennai Port Trust, Chennai - 600001 ...Respondents Prayer: Writ petition has been filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus calling for records relating to the 1st respondent's order made in No.E2/9343/02/H dated nil.02.04 as confirmed by the 2nd respondent in his E2/1929/04/H dated 26.06.2004, to quash the same and consequently direct the respondents to extend all benefits both service and monetary to the petitioner. For petitioner : Mr.L.Chandrakumar For Respondents:Mr.J.Sathyanarayana Prasad ORDER The petitioner, Mr.S.Mohandoss initially was appointed as Pharmacist Grade-II in the year 1978. He came to be posted as Pharmacist Grade-I in the year 1986 and, thereafter, he was promoted to the post of the Store supervisor in the year 2001. Unfortunately certain irregularities were found as the petitioner failed to inform his superior officer about the four boxes that contained excess medicines, which were left unaccounted. 2.Since the above said lapses amounted to misconduct as per the Clause-4 (ix) 4 (xx) read with 3 (ii) of the Madras Port Trust Employees' (Conduct) Regulations 1987, the petitioner was issued with the show cause notice dated 31.01.2003. In response to the said show cause notice, a detailed explanation, dated 26.02.2003, was submitted by the petitioner refuting the allegations and requesting https://hcservices.ecourts.gov.in/hcservices/ for dropping the entire charges. As the explanation submitted by the petitioner was found to be unacceptable, an enquiry was conducted. The Enquiry Officer submitted a detailed report holding that none of the charges stood proved as against the petitioner. But, the first respondent, the Appellate Authority, in so far as the Rules and Regulations are concerned, by stepping into the shoes of the Disciplinary Authority, by deviating from the report submitted by the Enquiry Officer, imposed a penalty of withholding of Increment for 2 years with cumulative effect. 3.It is further submitted that the Appellate Authority, even without giving any notice, as to why the Appellate Authority was deviating from the findings of the Enquiry Officer, has imposed the punishment of withholding of increment for two years with cumulative effect. Therefore, on the ground of violation of the principles of natural justice in not issuing a notice, it was submitted that the impugned order has to be quashed. 4.In reply, the learned counsel for the respondent, fairly submits that the Appellate Authority, while deviating from the Enquiry Officer's report, without issuing prior notice to the petitioner, has imposed the punishment of stoppage of increment for two years with cumulative effect, which is against the principles of natural justice. 5.The learned counsel for the petitioner also submits that the present impugned order will not stand to the scrutiny of this court, as conceded by the learned counsel for the respondent, since the Appellate Authority has imposed the punishment of stoppage of increment of two years with cumulative effect, without issuing prior notice to the petitioner. 6.A number of judgments can be cited to set aside the impugned order. However, the Hon’ble Apex Court in Lav Nigam – Vs. – Chairman & MD, ITI Ltd., (2006 (9) SCC 440), has held that in case the disciplinary authority differs with the view taken by the enquiry officer, he is bound to give a notice setting out his tentative conclusion to the delinquent officer. It is only after hearing the delinquent, that the disciplinary authority, would at all, arrive at the final finding of the guilt and, thereafter, the employee/delinquent could again have to be served with a notice relating to the punishment proposed. This view has been reiterated in Yoginath D.Bagde – Vs. – State of Maharashtra (1999 (7) SCC 739). 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. But the Apex Court held as follows :- https://hcservices.ecourts.gov.in/hcservices/ “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.” 7.In view of the pronouncement of the Apex Court referred to above, the present impugned order does carry any merit and, accordingly, it is liable to be set aside and the same is set-aside. However, it is always open to the respondent to issue notice to the petitioner as to why the Disciplinary Authority cannot deviate from the findings of the Enquiry Officer. 8.It is informed that the petitioner is going to retire in September 2010. If the Disciplinary Authority finds any sufficient ground for proceedings, further, it is open for the respondents to proceed in accordance with law, if they are so advised, that too before the petitioner reaches the age of superannuation. With these observations, the writ petition is allowed. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar gv https://hcservices.ecourts.gov.in/hcservices/ To 1. The Chairman Chennai Port Trust, Chennai-600001. 2.The Deputy Chairman Chennai Port Trust, Chennai - 600001 1 cc to Mr.L.Chandrakumar, Advocate, Sr.No.17428 1 cc to Mr.J.Sathya Narayana Prasad, Advocate, Sr.No.17227 W.P.No.21413 of 2004 TRM {CO} TP/26.3.2010. https://hcservices.ecourts.gov.in/hcservices/