IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.02.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.14609/2008 & M.P.Nos.1&2/2008 R.Mannar ..Petitioner -vs- 1. The Secretary to Government, Municipal Admn. & Water Supply (NP2) Department, Fort St. George. Chennai 9. 2. The Commissioner of Municipal Admn. Chepauk, Chennai 9. ..Respondents Prayer: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records of the respondents in connection with impugned order passed by the first respondent in G.O.Ms.No.6 Municipal Administration and Water Supply (NP2) Department dated 18.01.2008 and quash the same and direct the respondents to settle the retirement benefits of the petitioner within a reasonable time. For Petitioner : Mr.K.Venkataramani Senior Counsel for M/s. Muthappan For Respondents : Mr.P.Subramanian, Addl Govt. Pleader for R1-2 O R D E R By consent the main Writ Petition itself is taken up for disposal. The prayer in the writ petition is to quash the Government order in G.O.Ms.No.6, Municipal Administration and Water Supply Department, dated 18.01.2008 and to direct the respondents to settle the retirement benefits of the petitioner. The impugned Government order is an order, compulsory retiring the petitioner from service as a measure of penalty. 2. The petitioner was working as Municipal Commissioner of the Thiruvottriyur Municipality between the period from 05.09.2001 to https://hcservices.ecourts.gov.in/hcservices/ 14.09.2003, subsequently, the petitioner was transferred to Thanjavur and thereafter posted as Municipal Commissioner, Ambattur. The second respondent by proceedings dated 19.07.2005 issued a charge memo to the petitioner alleging that the petitioner while working in Thiruvottriyur Municipality had failed to handover 5 steel boxes containing polled ballot papers for safe custody to the Treasury as per the instructions of State Election Commissioner and District Collector, during the ordinary election of local bodies held in October 2001, which resulted in tampering of one ballot box and thereby brought discredit to the Municipal Administration. The petitioner submitted his statement of defence on 25.10.2005 and the Joint Director, (Administration), of the second respondent Department was appointed as the enquiry officer to enquire into the charge framed against the petitioner. The enquiry officer by his report dated 16.10.2006 held that the charge against the petitioner was not proved. The first respondent by proceedings dated 21.11.2006 disagreed with the findings of the enquiry officer and communicated the reason for deviating from the findings of the enquiry officer and called upon the petitioner to submit his objections. The petitioner by his reply dated 21.12.2006 submitted his objection and thereafter the first respondent after obtaining the views of the TNPSC, passed the impugned order imposing a punishment of compulsory retirement against the petitioner, without prejudice to the other disciplinary proceedings, which are pending against the petitioner. 3. Mr.K.Venkataramani, learned senior counsel appearing for the petitioner would contend that the action initiated by the petitioner is tainted with the malafide and that the petitioner has been victimized. The petitioner had functioned as Municipal Commissioner of Thiruvottriyur Municipality between the period from 05.09.2001 to 14.09.2003 and for certain political reasons as many as 10 charge memos were issued to the petitioner in a short span of time and the petitioner challenged the said charge memos by filing 10 writ petitions in W.P.No.28234/2005, etc., which were all disposed of by this Court by a common order dated 26.09.2005 to conclude the disciplinary proceedings within a time frame. On the factual allegations made in the charge memo dated 19.07.2005, the learned senior counsel would contend that when the allegation of tampering was made, the petitioner was serving at Thanjavur, since the petitioner had handed over charge on 14.09.2003 itself. Further, the election to the local body was conducted and the said election came to be challenged by the unreturned candidate by filing an Election O.P before the District Court. The election petition was dismissed and the unsuccessful candidate filed C.R.P. No.1069/2003 before this Court. This Court by an order dated 09.12.2003 directed for recounting the votes of the election held on 18.10.2001. At that stage, it is alleged that the ballot boxes were tampered. The learned senior counsel would submit that the allegation itself is incorrect, since what is stated in Annexure II to the charge is that the pad lock of one of the steel box containing the ballot box was https://hcservices.ecourts.gov.in/hcservices/ found broken. It is further submitted that the allegation itself is that the petitioner did not keep the polled ballot box in safe custody with the Treasury as per the instructions of the State Election Commission and District Collector. 4. According to the petitioner, he has not received any such instructions from the District Collector and about the directives of State Election Commission, it is stated that there is no Treasury in Thiruvottriyur and the local State Bank of India is also functioning as a Treasury and they had refused to accept these ballot box, due to lack of space and these boxes remained intact during the pendancy of the Election OP before the District Court, which was dismissed on 23.03.2003 and thereafter, the revision petition was disposed of by this Court on 09.12.2003 and no direction was issued by the District Court as regards the ballot boxes, which continued to remain in the Municipal office. Even according to the respondents, the tampering was deducted only in 2004. By placing heavy reliance on the report of the enquiry officer, wherein the enquiry officer relied upon Rule 90(2) of the Municipal Election Rules, which empowered the Municipal Commissioner to retain ballot papers in the office of the Municipality for a year and then unless otherwise directed by the competent Court be destroyed. It is contended by the learned senior counsel that the petitioner cannot be faulted for keeping the ballot boxes in the Municipal office, since it was permissible under the Rules. It is further contended that the petitioner was not communicated with any circular of the District Collector dated 20.05.2002, where the instruction was issued to keep the ballot boxes to the Treasury. It is further submitted by the learned senior counsel that in urban area, there are no Treasuries and there are only banking treasuries and only in mofusil area, there are Treasuries and the petitioner was justified in retaining the ballot boxes in the municipal office in terms of Rule 90(2) and any guideline issued by the District Collector cannot over ride the statutory provisions. 5. The learned senior counsel raised three legal issues. That the impugned order is in violation of Rule 9A of the Tamil Nadu Civil Service Discipline and Appeal Rules. The petitioner and four other staff members of Thiruvottriyur Municipality were proceeded against under Rule 17 (b) of the Rules and in terms of Rule 9A, if more than one person of the same Department is involved the disciplinary authority of the highest ranking officer among the delinquent alone is competent to initiate disciplinary proceedings and therefore, the charge memo itself could have been issued only by the first respondent and not by the second respondent. The second legal contention raised is that the disciplinary authority, while differing with the conclusion of the enquiry officer by proceedings dated 21.11.2006 pre-decided the issue by holding that the charge against the petitioner was held proved. Therefore, it is submitted that all the subsequent proceedings have to be held as illegal. The next https://hcservices.ecourts.gov.in/hcservices/ legal issue raised by the learned senior counsel is that the petitioner was not afforded an opportunity of hearing before the disciplinary authority came to a conclusion that the charges against the petitioner is proved. In support of the said contention, the learned senior counsel placed reliance on the decision of the Hon'ble Supreme Court in Punjab National Bank and Others Vs. Kunj Behari Misra – (1998) 7 SCC 84 and Lav Nigam Vs. Chairman & MD, ITI Ltd, and another - (2006) 9 SCC 440. It is further contended that there is discrimination in the matter, in the sense that the other 4 persons, who were also proceeded against have not been penalized and the petitioner alone has been singled out. 6. Finally, the learned senior counsel would contend that there is no deliberate attempt on the part of the petitioner in violating any rule or regulation and he had only complied with the statutory provisions. 7. Mr.P.Subramani, the learned Additional Government Pleader, by relying upon by the counter affidavit filed would contend that the charge against the petitioner is very serious, since he failed to hand over the 5 steel boxes containing polled ballot papers to the Treasury as per the directive issued by the State Election Commission and the District Collector during the ordinary election of the local body. This Court by order dated 18.10.2006 in C.R.P.No.1069/2006 ordered for recounting of votes and at that point of time, the then Municipal Commissioner noticed that the padlock of one of the ballot papers was broken. The same was reported to the higher officials and police complaint was also lodged, that the petitioner had committed various other irregularities and 10 charge memos were issued, which were challenged by the petitioner before this Court and this Court by order dated 26.09.2005 directed the respondents to complete the proceedings within a period of eight months from October 2005 and conclude the same by May 2006. Accordingly, disciplinary action has been taken and 10 final orders have been passed against the petitioner. It is further submitted that the petitioner failed to comply with the instructions laid down in Rule 67(1) of the Municipal Corporation Election Rule, which requires that the polled ballot papers should be deposited for safe custody with the Treasury. The petitioner did not comply with the statutory Rule and kept the 5 boxes in the Municipal office and never informed his successor and failed to furnish those details in the CTC form and therefore, there is dereliction of the duty on the part of the petitioner. 8. As regards the contention raised by the learned senior counsel for the petitioner alleging violation of Rule 9A, it is submitted by the learned Additional Government Pleader that among the officers who were proceeded against the petitioner was the highest officer, however, there were 10 disciplinary proceedings, pending against the petitioner and he was also placed under suspension and therefore, it was proper to remit the papers to the Government, which https://hcservices.ecourts.gov.in/hcservices/ has all powers to finalise the case against the petitioner as the appointing authority, however, the Commissioner of Municipal Administration being the head of Department, is entitled to initiate disciplinary proceedings and place the matter for the decision of the Government and therefore, there is no violation of the Rules. It is further submitted that in paragraph 16.12.2 of the hand book for the returning officers issued by the Tamil Nadu State Election Commission for Election to urban local bodies, it is stated that the sealed boxes containing polled ballot papers should be deposited for safe custody in the Treasury/Sub Treasury on the same day and the State Election Commission by circular dated 21.11.2001 have informed the urban local bodies to deposit election related records in Sub- Treasury/Treasury and send compliance report before 30.11.2001 to the Election Commission. The District Collector also issued circular dated 28.11.2001 on the same lines. The petitioner being a returning officer cannot plead ignorance of such directives issued by the State Election Commission and wriggle out of his obligation, when he was required to send compliance report before 30.11.2001 to the Election Commission. 9. The learned Additional Government Pleader would further contend that the disciplinary authority has not pre-decided the issue, but issued show cause notice to the petitioner and only after affording opportunity, the Government has taken decision in the matter and there is no violation of principles of natural justice. Learned Additional Government Pleader would further submit that the order of punishment is valid and proper and considering the charge against the petitioner, the Government took decision only after consulting the TNPSC in the matter. Therefore, pleaded that the writ petition should be dismissed. 10. I have considered the submissions on either side. Before proceedings into the factual issues, it would be essential to examine the legal issues raised by the learned senior counsel for the petitioner. The enquiry officer appointed to enquire into the charge against the petitioner, by report dated 16.10.2006, held that the charges are not proved. The enquiry officer based his findings, by stating that the returning officer was entitled to retain the polled ballot papers in the Municipal office in terms of Rule 90 (2) of the Rules and therefore, it is contended that the petitioner has not violated any of the statutory provision. This report was not accepted by the Government and it was proposed to deviate from the finding and accordingly a notice was issued to the petitioner dated 21.11.2006, granting the petitioner 15 days time to submit his representation. It is the contention of the learned senior counsel for the petitioner that the first respondent pre-decided the issue. In paragraph 3 of the proceedings dated 21.11.2006 issued by the first respondent, reason for deviating from the findings of the enquiry officer has been mentioned. The first respondent after mentioning about the circulars issued by the District Collector and https://hcservices.ecourts.gov.in/hcservices/ by placing reliance on Section 67 (1) of the Municipal Corporation Election Rules, mandating that the polled ballot papers should be deposited on the same day with the Treasury/Sub-Treasury, but the petitioner failed to deposit the same and even after the filing of the election petition, he has not deposited and therefore observed that the charge is held proved, in deviation of the findings of the enquiry officer, who held charge has not proved. It is settled legal position that the findings of the enquiry officer is not binding on the disciplinary authority. However, if the disciplinary authority proposes to differ from the conclusion of the enquiry officer, the delinquent is entitled to a show cause notice. In such show cause notice, it has to be spelt out as to the basis on which the disciplinary authority disagrees with the findings of the enquiry officer. Only if such reasons are mentioned for disagreement, the delinquent would have sufficient opportunity to meet the point in his representation. Thereafter, the disciplinary authority after considering the representation shall proceed to pass final orders. 11. In the instant case, the proceedings dated 21.11.2006 is one such show cause notice, wherein the first respondent has communicated the tentative reasons for disagreeing with the findings of the enquiry officer. Though, in the last line of paragraph 3 of the letter dated 21.11.2006, it is stated "is held as proved" should not be read in isolation and the sentence should be read in full, wherein it states that "is held as proved in deviation of the findings of the enquiry officer, who held charge has not proved". Therefore, the first respondent after setting out the reasons concluded with the above sentence. In my view, this cannot be construed as pre-deciding the matter. Further, the petitioner did not raise any such objection before the first respondent stating that he had already pre-decided the issue. Therefore, no prejudice appears to have been caused to the petitioner on account of the such observation in the proceedings dated 21.11.2006 and the petitioner has also submitted his reply to the notice on 27.12.2006 construing the proceedings dated 21.11.2006 as a show cause notice and therefore, I am not inclined to accept the submissions, that the first respondent pre-decided the issue. 12. The next contention to be considered is as to whether the procedure adopted by the first respondent after issuing the notice dated 21.11.2006 setting out the reasons for deviating from the findings of the enquiry officer is correct and whether the same is in accordance with law. This issue is no longer res-integra as having been settled by the Hon'ble Supreme Court in several decisions of which, it would be relevant to take note of the decision in Lav Nigam, referred supra, as relied on by the learned senior counsel for the petitioner. In the said case, the department proceedings were initiated against the delinquent, the enquiry officer exonerated him, but the disciplinary authority passed an order stating that he has provisionally concluded that the delinquent in that case is not a fit person to be retained in service and accordingly proposed to impose https://hcservices.ecourts.gov.in/hcservices/ the penalty of removal. The delinquent therein was granted 15 days time to submit his representation against such proposal. The Hon'ble Supreme Court after considering the facts of the said case and referring to the earlier decisions of the Hon'ble Supreme Court held thus:- "11. In Punjab National Bank V. Kunj Behari Misra- (1998) 7 SCC 84 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: "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 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 – (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. The Court said: "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 https://hcservices.ecourts.gov.in/hcservices/ 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'. 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." Thus the legal principle which could be culled out from the above decision of the Hon'ble Supreme Court is that when disciplinary authorities defers with the view taken by enquiry officer, he is bound to do the following:- i)Give notice mentioning the tentative conclusion to the delinquent. ii)Afford an opportunity of hearing to the delinquent. iii)After hearing the delinquent the disciplinary authority could arrive at the final finding of guilt. iv)Thereafter, the delinquent should be served with the notice relating to the proposed punishment. 13. As in the case of Lav Nigam, referred supra, in the case of the petitioner also the enquiry officer exonerated the petitioner from the charge, but the disciplinary authority chose to defer from such conclusion. However, the procedure adopted by the disciplinary authority is not in accordance with the law laid down by the Hon'ble Supreme Court as referred above. The disciplinary authority has failed to comply with the conditions (ii), (iii), and (iv) as set out supra and passed the final order of punishment of compulsory retirement. Therefore, it has to be necessarily held that the https://hcservices.ecourts.gov.in/hcservices/ procedure adopted by the disciplinary authority is not in consonance with the law laid down by the Hon'ble Supreme Court. 14. The second legal submission made by the learned senior counsel is that Rule 9A has been violated. Rule 9A of the Rules states that in any case, where more than one Government servant of same department is involved, the authority competent to institute disciplinary proceedings and impose any penalty specified shall be the authority in that department in respect of Government servants, who holds the highest post and disciplinary proceedings against all of them taken together. In reply the respondents would submit that as many as 10 disciplinary cases were pending against the petitioner and the petitioner was also placed under suspension, therefore, the second respondent, who is the head of the department initiated the disciplinary action and thereafter, placed the matter for the consideration of the Government. It is to be noted that except issuance of the charge memo dated 19.07.2005 all other proceedings have been done by the first respondent and therefore, the procedure adopted by the department cannot be faulted. Further, the petitioner did not question the charge memo on the ground of violation of Rule 9A when it was well open to the petitioner to challenge the same, more particularly when he had filed 10 other writ petitions before this Court challenging the other charge memos issued. Therefore, I am not inclined to accept the submissions of the learned senior counsel for the petitioner in this regard. 15. As regards to the other contention raised by the learned senior counsel and as regards to the factual aspects of the matter, I do not propose to go into the same, since I am convinced that the disciplinary authority ought not to have proceeded to pass final orders after the notice dated 21.11.2006, straight away without adhering to the other procedures as held by the Hon'ble Supreme Court. In that view of the matter, I am inclined to accept the contention raised by the learned senior counsel for the petitioner on this ground. Accordingly, writ petition is allowed, the impugned order is set aside and the matter is remanded for fresh consideration by the first respondent. The petitioner shall treat the proceedings dated 21.11.2006 as a show cause notice setting out the tentative conclusion of the disciplinary authority. The petitioner is entitled to submit his objections to such conclusion within a period of two weeks from the date of receipt of a copy of this order. On receipt of such objection made by the petitioner, the first respondent shall afford an opportunity of personal hearing to the petitioner and thereafter pass orders on merits and in accordance with law within a period of 8 weeks after conclusion of the personal hearing. If the first respondent