IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.09.2009 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.5854 of 2007 S.Mahasingh ...petitioner Vs 1. The Principal Chief Conservator of Forests, Chennai – 600 015 2.The Conservator of Forests, Vellore Circle, Vellore. 3. Mr.R.Rajendran, Assistant Conservator of Forests, Forest Protection Squad, Tiruppathur, Vellore District. .... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.6292 of 2002 from the file of Tamil Nadu Administrative Tribunal to call for the records of (1) Na.Ka.No.Pa.2/12699/2000, dated 27.06.2001, of the 2nd Respondent; (2) Na.Ka.No.Pa.2/14536/2001, dated 09.07.2002, of the 2nd Respondent; (3) Na.Ka.No.TAI/34755/2002, dated 09.08.2002, of the 1st Respondent and (4) Na.Ka.No.451/2000, dated 07.11.2002, of the 3rd Respondent, quash the same and issue directions to the Respondents 1 and 2 herein (a) to appoint an Enquiry Officer by replacing the 3rd Respondent (b) expunge the deposition recorded from Thiru.R.Manickam, by the 3rd Respondent on 29.11.2000 (c) to direct the new Enquiry Officer to act strictly in accordance with the guidelines issued in the Hand Book of Disciplinary Proceedings by avoiding leading questions to the witnesses and (d) to allow the Applicant to engage a Retired Forest Official to assist him in the enquiry. For Petitioner : Mr. M.Ravi For Respondents: Mr.S.M.Kribanandham Spl.Govt.Pleader (Forests) https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner is a Forester. He was issued a charge memo dated 04.07.2000, making serious allegations under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 2. Later, an enquiry was ordered appointing one Thiru.V.Naganathan, I.F.S., Assistant Conservator of Forest, Tiruvannamalai, as Enquiry Officer by an order dated 21.07.2000 of the 2nd Respondent. At some point of time, the petitioner requested for the change of an Enquiry Officer making certain allegations. His request was considered. A new Enquiry Officer , the 3rd Respondent herein, was appointed by the 2nd Respondent herein by an order dated 13.10.2000. 3. At some point of time, here again, the petitioner made a representation dated 17.12.2000 to the 2nd respondent for change of Enquiry Officer. This time, the 2nd Respondent passed an order dated 27.06.2001, rejecting the representation dated 17.12.2000 of the petitioner, seeking change of Enquiry Officer. 4. Thereafter, the petitioner made an appeal dated 31.07.2001 to the first Respondent against the order dated 27.06.2001 passed by the 2nd respondent. However, the appeal was rejected by the 2nd Respondent by an order dated 09.07.2002. The 1st Respondent passed another order dated 09.08.2002, rejecting the appeal preferred by the petitioner. 5. In these circumstances, the petitioner, through a lawyer notice, requested the 3rd Respondent not to proceed with the enquiry. The 3rd respondent passed an order dated 07.11.2002, rejecting the request made in the lawyer notice. 6. Aggrieved by the same, the petitioner filed an Original Application in O.A.No.6292 of 2002 (W.P.No.5854)to quash the order dated 27.06.2001 and 09.07.2002 of the 2nd Respondent and 09.08.2002 of the 1st Respondent, refusing to change the Enquiry Officer and the order dated 07.11.2002 of the 3rd Respondent, rejecting the request made by the petitioner to withhold the enquiry proceeding. 7. Heard Mr.M.Ravi, learned counsel for the petitioner and Mr.S.M.Kirubanandham, learned Special Government Pleader for the respondents. 8. The learned counsel for the petitioner strenuously contends that the 3rd respondent acted like a prosecutor and cross examined the departmental witnesses. According to the petitioner, this act of the 3rd respondent is contrary to and in violation of the https://hcservices.ecourts.gov.in/hcservices/ guidelines contained in the Hand Book of Disciplinary Proceedings published by the Personnel and Administrative Reforms Department. He has produced the relevant passage of the said guidelines found in chapter III, under the heading "Oral Enquiry" and the relevant portion is extracted here under . "Do not allow the leading questions except in cross examination. Do not put leading questions to the witnesses yourself". 9. The learned counsel for the petitioner further submits that the 3rd respondent also did not permitted him to engage the retired Government Official, while the same is permissible under the Rule. 10. On the other hand, the learned Special Government Pleader for the respondents submits that the Department was gracious enough to change the Enquiry Officer and appointed the 3rd respondent. The learned counsel states that the petitioner was present only on 02.08.2000, and failed to present on the subsequent hearings on 18.08.2000, 08.09.2000 and 29.09.2000. While so, he came with a request for a change of Enquiry Officer in his letter dated 07.08.2000. When such a request was made, the same was acceded to, as stated above. 11. The 2nd Respondent conceded the said request and appointed the 3rd Respondent as a new Enquiry Officer by an order dated 30.10.2000. Thereafter, the learned counsel states that enquiry was held on all the following dates. 15.11.2000 12.08.2002 29.11.2000 05.09.2002 11.12.2000 23.09.2002 15.12.2000 29.11.2002 21.12.2000 12.12.2002 01.08.2001 12. During these days, the witnesses were examined on the side of the Department. The petitioner cross examined those witnesses. The Enquiry Officer put only the question in the nature of clarification. The learned counsel disputes that the Enquiry Officer cross examined the witnesses. Further the learned counsel states that the petitioner is not entitled to have a retired person to defend him in the enquiry, as per the Rules. 13. I have considered the submissions made on either side. I am not going into the merits of the issue. I am not deciding as to whether the question put by the Enquiry Officer was in the nature of cross examination or was in the nature of clarification. I am not deciding whether the 3rd Respondent was correct in refusing the petitioner to engage a retired Official. In any event, even https://hcservices.ecourts.gov.in/hcservices/ if the 3rd Respondent passed an erroneous order, not permitting the petitioner to engage a retired Official as defence representative, that could not be a ground to seek a change of Enquiry Officer. 14. The learned counsel for the petitioner states that the grievance of the petitioner was that the Enquiry Officer did not follow the guidelines contained in the Hand Book of Disciplinary proceedings published by Personnel and Administrative Reforms Department. Therefore, the only question remains is whether the petitioner could seek a change of Enquiry Officer on the ground that the Enquiry Officer put question to the Departmental witnesses in the nature of cross examination. 15. As stated above, the learned Special Government pleader contends that questions are not in the nature of cross examination. In any event , these issues, i.e., whether the question put by the Enquiry Officer is in the nature of cross examination or in the nature of clarification, are left open for ultimate decision, that could be agitated after passing of the final orders. Further, the learned Special Government Pleader submits that even if some of the questions are in the nature of the cross examination, that could not give right to the petitioner to seek a change of Enquiry Officer. 16. The learned Special Government Pleader submits that the petitioner is dragging on the matter unnecessarily and the matter is pending for a long time, due to the interim order granted by the Tribunal on 05.12.2002. 17. In my considered view, the submissions of the learned Special Government Pleader (Forest) are well founded. In these circumstances, the writ petition is dismissed. However, the 3rd Respondent is directed to complete the disciplinary proceedings within a period of twelve weeks, from the date of receipt of a copy of this order and the 2nd respondent is directed to pass final orders, based on the disciplinary proceedings, within a period of 8 weeks thereafter. No costs. GV Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Chief Conservator of Forests, Chennai – 600 015 2.The Conservator of Forests, Vellore Circle, Vellore. 3. The Assistant Conservator of Forests, Forest Protection Squad, Tiruppathur, Vellore District. • 1 cc to Mr. M. Ravi, Advocate SR No.44636 • 1 cc to Spl Government Pleader, CCSR No.44634 RSM(CO) SR/8.9.2009 W.P.No.5854 of 2007 https://hcservices.ecourts.gov.in/hcservices/