IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 15.07.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P. NO. 39014 OF 2002 V.Kaliamoorthy .. Petitioner - Vs - The Principal District Judge Nagapattinam. .. Respondent Writ Petition filed for the issuance of a writ of certiorari calling for the records relating to the order passed by the respondent in D.P. No.12 of 2002 dated 8.7.02 and quash the same. For Petitioner : Mr. R.Sankarappan For Respondent : Mr. N.Senthil Kumar, GA JUDGMENT S.J.MUKHOPADHAYA, J. This writ petition has been preferred by the petitioner against order contained in D.P. No.12/02 dated 8th July, 2002. By the said order, Principal District Judge, Nagapattinam, inflicted punishment of stoppage of two increments with cumulative effect. 2. The main grievance of the petitioner is that the order of punishment has been passed without giving opportunity to defend his case, as the copies of documentary evidence were not supplied prior to filing of written statement. The brief case of the petitioner is that prior to his deputation as Nazir of District Munsif Court, Sirkali, he was working as Assistant in Principal Sub Court, Nagapattinam. During the tenure of posting in that court, certain laches were noticed and for such dereliction of duty, an explanation was sought for from him on 27th https://hcservices.ecourts.gov.in/hcservices/ July, 2001, wherein the following allegations were levelled :- "1) I.A. 66/97 to condone delay in presenting R.T.A. was taken on file on 27.10.97 and it was pending disposal on the file of principal sub court, Nagapattinam. That Section 5 application (of Limitation Act) was posted from 28.10.98 to 4.12.98. Thiru.Kaliyamoorthy omitted to call that application subsequently. And contrary to that, he took the main appeal to file on 17.12.99 by numbering it as R.T.A. 34/99 and by making an endorsement falsely as if Section 5 application I.A.66/97 was allowed on that date, viz., 17.12.99 by condoning the delay in preferring the appeal. 2) So also, while Section 5 application I.A.62/97 was pending disposal and it was adjourned from 28.10.98 to 4.12.98, the delinquent Thiru.V.Kaliyamoorthy without calling that application subsequently chose to take the main appeal itself on file on 17.12.99 by assigning the number R.T.A.33/99 and by making an endorsement as if that Section 5 application was allowed on that date, viz., 17.12.99 by condoning the delay. 3) In I.A. 28/97 in unfiled R.T.A., two applications one under Section 5 of Limitation Act and the other to set aside abatement were presented in Court and the delinquent without taking on file initially Section 5 application, thought fit to take on file straight away the petition to set aside order of abatement and it was ultimately allowed on 4.4.01 thereby causing unnecessary complications in the judicial work." The petitioner asked for documents, but they being court records, he was asked to peruse the case records. The enquiry officer, by his proceeding dated 8th Aug., 2001, also allowed the petitioner to peruse the case records. Thereafter, he filed his show cause reply on 3rd Sept., 2001 stating that in view of ensuing annual inspection of his court and due to pressure of work in his branch and certain other branches, which he was attending then, the laches happened to occur, which was neither wilful nor wanton in committing those mistakes and considering the fact that he was having hardly 28 months of service to retire, requested to let him off taking a lenient view. 3. The show cause reply being not satisfactory, three count charges were framed against him on 10th Sept., 2001 and he was asked to submit his written statement of defence within 15 days. On 26th Sept., 2001, the delinquent filed application for further time of one months to submit his reply to the charges. He was granted 20 days time as per proceeding of the enquiry officer dated 28th Sept., 2001. On 24th Oct., 2001, the delinquent filed another application for https://hcservices.ecourts.gov.in/hcservices/ extension of time for 15 days, but he was granted 10 days further time finally as per proceeding of enquiry officer dated 30th Oct., 2001. Finally the delinquent did not choose to submit his reply till 13th Nov., 2001 and, consequently, the enquiry officer fixed 23rd Nov., 2001 as the date for enquiry and issued summons to the delinquent. He was asked to appear for enquiry on 23rd Nov., 2001 at 2.00 p.m., but after receiving the notice, the delinquent sent a telegram on 23rd Nov., 2001, praying adjournment of the enquiry after 1st Dec., 2001, on the ground of his ill-health, besides general strike. The enquiry officer adjourned the enquiry to 11th Dec., 2001 and summons were issued to the delinquent for his appearance on 11th Dec., 2001. The summons was received by the delinquent on 3rd Dec., 2001, who appeared on 11th Dec., 2001 and prayed for adjournment. On his request the enquiry was adjourned to 20th Dec., 2001. On 12th Dec., 2001, the delinquent presented an application praying copies of certain case records. The enquiry officer having noticed that those were court case records, directed the delinquent to peruse the records in presence of enquiry officer at the time of enquiry to be held on 20th Dec., 2001. On 20th Dec., 2001, the delinquent appeared before the enquiry officer and submitted his reply dated 19th Dec., 2001 to the charges. He had also presented an application to engage a lawyer to defend him. He was permitted to do so. After personal enquiry, the matter was adjourned to 10th Jan., 2002, but the said date having declared holiday, the enquiry was posted for enquiry on 1st Feb., 2002. On receipt of the summons of the subsequent date, the delinquent submitted an application to permit him to take assistance of one Mr.G.Loganathan, a retired Sheristadar of the Addl. District Judge – cum – Chief Judicial Magistrate's Court, Nagapattinam in defending his case. Such request was not allowed as he had already been granted permission to engage a lawyer to assist him in the matter of enquiry. On 1st Feb., 2002, the delinquent was present with his counsel and on their request the enquiry was adjourned to 18th Feb., 2002. On 4th Feb., 2002, the delinquent submitted a petition by enclosing three applications dated 1st Feb., 2002 and sought permission to engage a retired Government servant, specifically Mr.G.Loganathan, retired Sheristadar. His claim was again rejected like the earlier one as a lawyer had already been engaged. On 18th Feb., 2002, the delinquent did not choose to appear and sent a telegram with prayer to adjourn the enquiry on the ground of his heard ailment. The enquiry was fixed for 27th Feb., 2002, but he did not choose to submit his reply. Again he prayed for adjournment vide letter dated 26th Feb., 2002, on the ground of heart ailment. At that stage, he was informed of the date of enquiry as 1st March, 2002, but the delinquent forwarded a telegram for adjourning the matter on the ground of his daughter's engagement. The enquiry was adjourned for 5th March, 2002, but the delinquent did not choose to appear. The matter was thereafter adjourned for 13th March, 2002 and then for 15th March, 2002. On 15th March, 2002, recording the absence of the delinquent, the matter was posted to 26th March, 2002, but inspite of repeated adjournments and intimation to the delinquent, he did not choose to appear. Finally, by telegram received on 5th April, 2002, the delinquent informed that he was on medical leave and was not able to attend the enquiry. https://hcservices.ecourts.gov.in/hcservices/ 4. Having seen that the delinquent was asking adjournment on different dates, but for different grounds, sometime for engagement of lawyer, sometime for engagement of a retired officer, two times for heart ailment, one time for engagement of his daughter and intentionally avoiding his presence, the enquiry officer set him ex- parte on 5th April, 2002. Having examined the prosecution witness Mr.P.Gangadharan, Appeal Clerk of his Court as P.W.1 and marking exhibits Exs.P-1 to P-6 and taking into consideration the evidence, the enquiry officer held all the three charges levelled against the delinquent 'proved'. Taking into consideration the aforesaid finding, the delinquent was served with copy of enquiry report whereinafter the impugned order of punishment was passed on 8th July, 2002. 5. Learned counsel appearing on behalf of the petitioner took only plea that the copies of the documents were not provided prior to filing of written statement. He relied on the Bench decision of this Court in Union of India – Vs – T.K.Choudhari reported in 2003 (3) MLJ 372 in his support. Reliance was also placed on Supreme Court decision in State of U.P. - Vs – S.Lal & Anr. reported in 1998 (2) LLJ 799 wherein Supreme Court held that opportunity that is given to a delinquent must be an effective opportunity and not a mere presence and whenever copies of documents proposed to be utilised are not supplied to him and he is at the same time called upon to submit his reply, it cannot be held to be an effective opportunity to defend his case. On the other hand, learned counsel appearing on behalf of the respondents while referred to the aforesaid facts, submitted that a lenient view has been taken and punishment of stoppage of two increments with cumulative effect has been passed though in view of the gravity of charges, more harsh punishment could have been inflicted. 6. We have heard the learned counsel for the parties and noticed the rival contentions and the decision as referred to by the counsel for the parties. 7. From the fact as noticed above and not disputed, it will be evident that the petitioner was given full opportunity to defend his case. Even prior to framing of charges during the preliminary enquiry stage, allegations were communicated and explanation was sought for. At that time he was asked to peruse the documents, as the documents were court records and it was not possible to provide him with the copies of court records. At that stage, the petitioner had perused the documents and submitted his explanation. It is only thereafter the disciplinary authority being not satisfied with the explanation, framed charges and asked him to submit his written statement. At that stage also he was asked to peruse all the relevant documents, which were cited as evidence. Therefore, it cannot be alleged that the petitioner was not given proper opportunity to file an effective written statement. https://hcservices.ecourts.gov.in/hcservices/ 8. In the case of Bank of India – Vs – T.Jogram (2007 (7) SCC 236), while the question of judicial review of departmental enquiry fell for consideration, the Supreme Court held that such judicial review is not against the decision, but is against the decision making process. When there are no allegations of procedural irregularities/illegalities, interference by High Court is uncalled for. So far as the supply of documents is concerned, the Supreme Court held that mere failure to supply documents to delinquent officers will not render the enquiry illegal if it is shown that no prejudice was caused to the delinquent employee. That was a case in which the delinquent employee demanded the bills which he had himself submitted before the authority and at the time of written statement called for those documents. The Supreme Court held that the demand bills, etc., having been submitted by the employee himself if the copies were not supplied, no prejudice was caused to such delinquent. 9. In the present case, we have already noticed that the records were shown to the delinquent. The allegations as were levelled against him relates to endorsement made by him in one or other judicial records, which he had perused. Therefore, it cannot be held that the delinquent was not given proper opportunity to file effective written statement. In fact, from the facts as narrated in the preceding paragraph, it will be evident that the delinquent, all the time, avoided the enquiry for reasons best known to him. 10. In view of the observations as made above and as we find that the punishment of stoppage of two increments with cumulative effect is not disproportionate to the gravity of the charges levelled against the petitioner, interference with the order of punishment is uncalled for. There being no merit, the writ petition is dismissed. But there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar GLN To The Principal District Judge Nagapattinam. 1 CC To Mr.R.Sankarappan, Advocate, SR NO.37229 1 CC to the Government Pleader, SR NO.37583. W.P. NO. 39014 OF 2002 ms(Co) pmk/22.7.08. https://hcservices.ecourts.gov.in/hcservices/