IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.10.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.25939 of 2009 N.Durairajan ... Petitioner Vs. 1. The State of Tamil Nadu Rep. by the Secretary to Government, Revenue Department, Secretariat, Chennai – 600 009. 2. Principal Secretary – cum - Commissioner of Survey and Settlement, Chepauk, Chennai – 600 005. 3. The Additional Director of Survey and Land Records, Chepauk, Chennai – 600 005. 4. The Regional Deputy Director of Survey and Land Records, Coimbatore. 5. The Assistant Director of Survey and Land Records, Dharmapuri. 6. The Assistant Director of Survey and Land Records, Collectorate, Chennai – 1. ... Respondents Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the orders passed by the Additional Director of Survey and Land Records, Chennai -5, the 3rd respondent herein, vide his proceedings number Na.Ka.La2/27550/2009, dated 15.07.2009 and the proceedings of the Principal Secretary – cum – Commissioner of Survey and Settlement, Chennai -5, the 2nd respondent herein vide his proceedings number dated Na.Ka.Gna2/35772/2009, dated 10.11.2009 and to quash them as highly illegal, arbitrary, unreasonable, being violative of rules and principles of Natural Justice and thereby to direct the respondents herein to exonerate the petitioner from the charges and settle all https://hcservices.ecourts.gov.in/hcservices/ the consequential monetary and service benefits. For Petitioner : Mr.K.Venkataraman Senior Counsel for Mr.A.R.Suresh For Respondents : Mr.P.Subramanian Additional Government Pleader. O R D E R On consent the writ petition is taken up for final hearing at the admission stage. 2. The writ petition is filed against the order, dated 15.07.2009, passed by the third respondent / Additional Director of Survey and Land Records, as confirmed by the 2nd respondent / Principal Secretary Cum Commissioner of Survey and Settlement in his order, dated 10.11.2009 and to quash the same as highly illegal, arbitrary, unreasonable and is in violation of Rules and principles of natural justice and to consequently direct the respondents herein to exonerate the petitioner from the charges and to settle all the consequential monetary and service benefits. 3. The brief facts, which are relevant for consideration herein are :- The petitioner entered the service as Field Surveyor in the Survey Department during 1973 and promoted as Sub Inspector of Survey during 1982. The petitioner was issued with the Charge memo by the 5th respondent, containing five charges under Section 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules (hereinafter shortly referred to as TNCS(D&A)) on 07.03.1997. The petitioner submitted his detailed explanation on 10.05.1997. Not satisfying with his explanation, Department enquiry was initiated against him and the Department enquiry was conducted and the Department Enquiry Officer found, the charges to be proved against the petitioner and the same was submitted to the Disciplinary Authority. The Disciplinary Authority, after obtaining further explanation from the petitioner, passed the final order on 16.09.1997, imposing the punishment of stoppage of increment for a period of 3 years with cumulative effect and further imposed ban of posting in the maintenance post for nearly six years. Aggrieved against the same, the petitioner preferred an appeal, before the Regional Deputy Director of Survey and Land Records. The Appellate Authority has on 24.07.1999, confirmed the punishment imposed by the Disciplinary Authority. However, the punishment was at the instance of the petitioner modified into stoppage of increment for a period of one year with cumulative effect by an order, dated 06.09.2000 passed by the Head of the Department. The petitioner has further filed a Review Petition before the second respondent / Principal Secretary – cum – Commissioner of Survey and Settlement, on 23.11.2000. But, the Review Authority has by an order, dated 21.09.2001, rejected his review petition and confirmed the order of the Disciplinary Authority. https://hcservices.ecourts.gov.in/hcservices/ 4. The correctness and validity of the same is challenged, before the Tamil Nadu Administrative Tribunal in O.A. 6676 of 2001, and the Tribunal, by an order, dated 14.06.2002, allowed the application insofar as its relates to the ban for posting the petitioner in maintenance post for 6 years and the petition was dismissed in other respects. The petitioner, again, filed an appeal before the 1st respondent, against the punishment order and the Government has in G.O.463, Revenue (Ni.a.3(1)) Department, dated 30.06.2006, set aside the punishment and remitted the matter to the Disciplinary Authority for fresh enquiry and to submit the enquiry report. The Inspector of Survey, Krishnagiri was appointed as Enquiry Officier, who conducted the enquiry and submitted his report, dated 02.08.2007 and finding the charges against the petitioner as not proved. The 3rd respondent, Additional Director of Survey and Land Records, who is the Disciplinary Authority, has on receipt of the same, disagreed with the view of the Enquiry Officer's finding and held the charges against the petitioner proved and issued a show cause notice, dated 17.04.2008, thereby directing him to submit his explanation in this regard. The petitioner submitted his detailed Explanation, dated 06.06.2008, thereby requesting the Disciplinary Authority to accept the Enquiry Officer's Finding and to exonerate him from the charges. However, the Disciplinary Authority has passed the final order on 15.07.2009, thereby rejecting his petitioner's request and imposed the punishment of stoppage of increment for a period of 3 years with cumulative effect, to be given effect from the original date of punishment imposed by the Assistant Director of survey and Land Records, Dharmapuri, on 16.09.1997. The order of the Disciplinary Authority was served on the petitioner on 30.07.2009, one day prior to the date of his Superannuation. The petitioner, on 31.07.2009, permitted to retire without any reservation. The petitioner, after retirement, preferred an appeal on 07.10.2009 to the 2nd respondent / Principal Secretary cum Commissioner of Survey and Settlement, against the order of the 3rd respondent / Additional Director of Survey and Land Records. The Appellate Authority, on 10.11.2009, rejected the same on the ground that the same is time barred. The petitioner has come forward with this writ petition, challenging the correctness of the order of the 3rd respondent as confirmed by the second respondent herein. 5. The impugned orders are challenged on several grounds. The learned counsel for the Petitioner has in the course of his argument mainly contended that the proceedings of the Disciplinary Authority from the issuance of the show cause notice on 17.04.2008 till the date of imposing punishment is in gross violation of the procedure laid down under law and the principles of natural justice. It is contended by the learned counsel for the petitioner that the delinquent officer must be given two show cause notices before imposing any punishment on him. In this case, straight away, the Disciplinary Authority disagrees with the findings of the Enquriy Officer. The first show cause notice should be issued with his tentative reasons for such disagreement with the findings of the Enquiry Officer and the Delinquent Officer must be given an opportunity to represent before the Disciplinary Authority, before recording its finding on the charges. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, the report of the Disciplinary Authority, containing its findings, will have to be conveyed to the Delinquent Officer with an opportunity given to him to submit his objection to accept the favourable conclusion of the enquiry officer. Thereafter, the Disciplinary Authority will have to pass the final order, imposing the punishment on the Delinquent Officer for the charges, which are in the view of the Disciplinary Authority held to be proved. It is pointed out by the learned counsel that the Disciplinary Authority has in the instant case violated the procedure and principles as referred above and the disciplinary authority has even in the first show cause notice, dated 17.04.2008, prejudged the charges and held the charges as proved and passed the final order without giving any opportunity of personal hearing before recording its findings and without giving second show cause notice along with such findings to the petitioner, to enable him to give his objection and such course adopted by the Disciplinary Authority is illegal and vitiated and when such order is challenged by the Delinquent Officer by way of statutory appeal, the same is confirmed by the Appellate Authority not on merits, but mainly on the ground of delay in filing the appeal. 6. I have considered the rival submissions made on both side and perused the records available herein. 7. The perusal of the records would show that the disciplinary authority has on the first occasion passed final order in the disciplinary authority proceedings on 16.09.1997 and the same is finally at the instance of the petitioner found to be vitiated and is set aside and the matter is remanded back and the Enquiry Officer is directed to proceed with the enquiry from the stage, from which, it is found to be vitiated, such order is passed by the first respondent on 30.06.2006 and fresh enquiry was commenced in 2007 and the Enquiry Officer has, after holding enquiry, held all the charges as not proved against the petitioner. The impugned order came to be passed by the Disciplinary Authority only by disagreeing with the findings of the Enquiry Officer. The Supreme Court and our High Court have in catena of judgments laid down the procedure to be adopted in the given situation, one of the judgments is reported in 2006 9 SCC 440 in Lav Nigam vs. I.T.I limited and another. The Supreme Court has in the same judgment referred to two of its earlier judgments reported in Punjab National Bank vs. Kunj Behari Misra (1998 7 SCC 84) and Yoginath D. Bagde vs. State of Maharashtra (1999 7 SCC 739). The Supreme Court has in para 13 of its judgment reported in 2006 (9) SCC 440 following the observation of the Supreme Court in the earlier judgments, arrived at the conclusion that the orders impugned therein, cannot be legally sustained. The observation of the earlier judgment of the Supreme Court and the decision of the Supreme Court in the latest judgment, cited above are extracted hereunder: "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 https://hcservices.ecourts.gov.in/hcservices/ 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 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, 1970 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 enquiry 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 https://hcservices.ecourts.gov.in/hcservices/ 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." In the the present case, the reading of the show cause notice, dated 17.04.2008 and the final order passed by the Disciplinary Authority on 15.07.2009, enclosed at pages 86 and 87 and 94 to 109 of the typed set of papers, filed by the petitioner herein, would show that the entire proceeding is totally in violation of the procedure laid down in the judgment of the Supreme Court, amount into violation of principles of natural justice. 8. As rightly pointed out by the learned counsel for the petitioner, the show cause notice, dated 17.04.2008, is not the valid show cause notice as contemplated in the judgment of the Supreme Court, but it is only a show cause notice for the proposed punishment. The petitioner was also not called for any personal hearing, by the Disciplinary Authority. Further the reading of the final order passed by the Disciplinary Authority, dated 15.07.2009, would reveal that it is the classic case of non application of mind of the Disciplinary Authority. The disciplinary officer has without independently arriving at any conclusion based its decision disagreeing with the finding of the second enquiry officer, mainly on the basis of the earlier findings of the first enquiry officer, which is already set aside by the first respondent / Government. The Disciplinary Authority has also erred in its finding that the Government has not set aside the punishment imposed and the punishment is hence to be given effect to from the date of the original order. The Disciplinary Authority has failed to understand that the effect of setting aside, the finding as vitiated would render the punishment, which is only consequential order to be ineffect and non-est in law and the omission to specifically set aside, the same would not alter the situation. When the findings of the enquiry is set aside, the final order based on the same is automatically set aside. Such an erroneous approach on the part of the Disciplinary Authority contrary to well laid down legal procedure and in violation of the principles of the natural justice without independent application of mind renders the impugned order unfair, biased, illegal, irregular, improper and legally unsustainable in the light of the ratio laid down by the Supreme Court in the authority above cited. https://hcservices.ecourts.gov.in/hcservices/ 9. It is true that under normal circumstances, the matter will have to be remitted back for fresh consideration from the stage, at which it is found to be vitiated. However, in the present case, this court is not inclined to do so for the following reason. The charge memo is issued against the petitioner during 1997. The petitioner had to knock at the doors of different Authorities against the same and the same was ultimately found to be vitiated at the particular stage and was set aside only during 2006. However, the authority concerned has once again adopted totally erroneous procedure resulting in the impugned orders. In the mean while the petitioner retired on 31.07.2009. The impugned order was served on the petitioner on 30.07.2009 just one day prior to his retirement on Superannuation. There is totally more than one decade lapsed before the proceeding are completed at the Department stage. The petitioner was even after his retirement driven to defend his case. Under such peculiar circumstances, the Supreme Court in its judgment reported in 2001 (9) SCC 261 in M.A. Hameed vs. State of A.P. and another, pleased to hold the reversion of the appellant, after he held the higher post for more than decade to be wholly unjustified. In the dealt with by an Supreme Court, the appellant was allowed to hold the higher post from 1971 to 1981 and the order of reversion is passed, during 1991 and the same was challenged before the Tamil Nadu Administrative Tribunal. The Tribunal dismissed the application and the delinquent challenged the same, before the Supreme Court. During the pendency of the application before the Supreme Court, the petitioner retired on Superannuation. Keeping the same in view and considering the fact that the reversion order was passed nearly after one decade, the Supreme Court was pleased to set aside the order of reversion, however without back wages from the date of his reversion till the date of his retirement. Our High Court has also in another case filed by the same petitioner herein against the order of punishment imposed upon him in the Disciplinary Proceeding initiated against him, upon the charge memo, under section 17(b), dated 26.02.1997, not only set aside the punishment imposed upon the petitioner, as bad in law and is in violation of the principles of Natural Justice, but has also quashed the entire disciplinary proceeding, culminating in the impugned punishment. Our High Court has in para 7 of the unreported Judgment made in W.P.No. 40440 of 2006, observed that if at this length of time i.e. after 14 years, the matter is remitted back for fresh enquiry, the same will cause serious prejudice to the petitioner. The learned single Judge has held so by following the proposition of law laid down in catena of decisions of Honourable Supreme Court followed by this Court to the effect that inordinate delay in the disciplinary proceedings shall vitiate the entire proceedings. The learned single judge finally found that this is not a fit case to remit the matter back to the Department for fresh enquiry and hence quashed the entire proceedings. In my considered view, the same reasoning applied by the single judge relating to the other Department Proceedings against the same petitioner can be in full force applied herein and this court is hence while setting aside the impugned orders not inclined to remit the matter back. https://hcservices.ecourts.gov.in/hcservices/ 10. In the result, the writ petition is allowed as prayed for. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ogy To 1. The Secretary to Government, Revenue Department, Secretariat, Chennai – 600 009. 2. Principal Secretary – cum - Commissioner of Survey and Settlement, Chepauk, Chennai – 600 005. 3. The Additional Director of Survey and Land Records, Chepauk, Chennai – 600 005. 4. The Regional Deputy Director of Survey and Land Records, Coimbatore. 5. The Assistant Director of Survey and Land Records, Dharmapuri. 6. The Assistant Director of Survey and Land Records, Collectorate, Chennai – 1. 1 cc To Mr.A.R.Suresh, Advocate, SR.73842 W.P.No. 25939 of 2009 ts(co) pmk.2.11.2010 https://hcservices.ecourts.gov.in/hcservices/