IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2009 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.49499 OF 2006 (T) (O.A.No.1871 of 2001) A.Arunachalam ... Petitioner Vs. 1. Superintendent of Police District Police Office Perambalur 2. Superintendent of Police District Police Office Trichy – 620 001 3. Commissioner of Police City Police Office Trichy – 620 020 ... Respondents (R-1 and R-3 is dismissed as per the order of the Court in M.A.No.4729 of 2000, dated 11.09.2000) PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.1871 of 2001, to call for the records pertaining to the impugned order passed by the first respondent herein in his proceedings D.O.60/97, C.No.C1/P.R.276/95 dated 13.02.1997 and quash the same with all consequential service and monetary benefits. For Petitioner : Mr.G.Bala For Respondents : Mrs.C.K.Vishnu Priya Additional Government Pleader O R D E R The Original Application in O.A.No.1871 of 2001 before the Tamil Nadu Administrative Tribunal is the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner joined the service as Grade-II Police Constable on 07.12.1970. He was promoted as Grade-I Police Constable on 14.12.1979. He was further promoted as Head Constable in 1993. It is averred that he received 58 awards for his efficient service, though he was subjected to two minor punishments in his 27 years of service. While so, the petitioner was served with a charge memo in P.R.No.58/86 dated 05.06.1986 under Rule 3 (b) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules by the Deputy Superintendent of Police, Musiri, alleging certain incident that took place on 21.01.1986. An enquiry was conducted; witnesses were examined and documents were marked as exhibits. The Enquiry Officer seems to have submitted a report. However, a copy of the enquiry report was not furnished to the petitioner. It seems that the Enquiry Officer held that the allegations were proved. But the second respondent, the Disciplinary Authority passed an order dated 09.04.1987 holding that the allegations, which were proved in the minutes, are not substantiated through exhibits. It is stated that when the second respondent held the charges as not proved, he ought to have dropped further action and on the other hand he ordered a de- nova enquiry. 3. When de-nova enquiry was ordered in the aforesaid order dated 09.04.1987 of the second respondent, a fresh charge memo in P.R.No.276/V4/95 dated 15.08.1995 was issued after eight years. However, no reason was given for issuance of charge memo belatedly i.e. after a lapse of eight years. Again an enquiry was held. In the enquiry, the Enquiry Officer held that charges were not proved, based on the materials placed before him. Here again, without furnishing a copy of the enquiry report, the first respondent issued the Show Cause notice dated 06.09.1996 proposing to impose the punishment of reduction in pay by one stage for one year with cumulative effect, based on his disagreement on the findings as recorded in the said Show Cause notice. Ultimately the first respondent passed the impugned order dated 13.02.1997 imposing the punishment of postponement of increment for one year with cumulative effect. 4. Aggrieved by the same, the petitioner filed Original Application in O.A.No.1871of 2001 (W.P.NO.49499 of 2006) to quash the aforesaid order dated 13.02.1997. 5. Heard Mr.G.Bala, learned counsel for the petitioner and Mrs.C.K.Vishnu Priya, learned Additional Government Pleader for the respondents. 6. The learned counsel for the petitioner submits that the impugned order is vitiated on various grounds. https://hcservices.ecourts.gov.in/hcservices/ He has made the following submissions:- i) The petitioner was not furnished with a copy of the report of the Enquiry Officer in the first enquiry. ii) When the second respondent passed an order date 09.04.1987 that the allegations made in the charge memo were not substantiated through exhibits produced in the enquiry, the second respondent was not justified in directing for a de-nova enquiry. iii) After passing an order dated 09.04.1987 for de-nova enquiry, a charge memo in P.R.No.276/V4/95 was issued belatedly after a lapse of eight years without explaining the reason for the delay. iv) While recording the disagreement on the findings of the Enquiry Officer holding that the petitioner was not guilty of the charges, the first respondent ought to have furnished a copy of the findings of the Enquiry Officer. v) Before recording his disagreement on the findings of the Enquiry Officer, the first respondent ought to have recorded only a tentative disagreement and only after hearing the petitioner thereon, he should have recorded his disagreement. But the same was not followed. It is submitted by the learned counsel for the petitioner that the petitioner was retired from service in the year 2008 on reaching the age of superannuation. 7. The learned Additional Government Pleader for the respondents made her submissions based on instructions. 8. As rightly contended by the learned counsel for the petitioner, when the second respondent has held that the charges were not made out in the earlier enquiry, he was not justified in ordering de-nova enquiry, in view of the following passage found in the order dated 09.04.1987. "The allegations which were proved in the minute are also not substantiated through exhibits." 9. Once the second respondent recorded that the charges were not substantiated, it is always open to him to drop further action and not to have order de-nova enquiry. Even assuming that the second respondent was correct in his order dated 09.04.1987 in ordering a de-nova enquiry, there is no reason for issuing charge memo in the year 1995 for the de-nova enquiry, after eight years. The reason for the delay was also not explained. Once a de-nova enquiry was ordered, there is no reason to proceed with the matter belatedly after eight years. Hence, the delay of eight years would vitiate the entire action. https://hcservices.ecourts.gov.in/hcservices/ 10. Further, as rightly contended by the learned counsel for the petitioner when the Enquiry Officer found in the de-nova enquiry that the charges were not established, the petitioner should have been furnished with the enquiry report. Without furnishing a copy of the enquiry report, the first respondent is not correct in recording his disagreement on the findings of the Enquiry Officer. Further, the first respondent could not record his disagreement straight away without hearing the petitioner. The principles of natural justice requires that before recording disagreement, the first respondent should have heard the petitioner on the tentative disagreement. On the other hand, the first respondent straight away recorded his disagreement and issued Show Cause notice dated 06.09.1996 and the said Show Cause notice proposed to impose the punishment based on such disagreement. Such a course adopted by the first respondent is in flagrant violation of the principles of natural justice. Further, in spite of the request of the petitioner to furnish a copy of the report of the Enquiry Officer that was in his favour, the same was not furnished. The relevant passage from the order dated 12.06.1997 is extracted hereunder:- "2. He is requested to inform the Gr.I PC 2007 Arunachalam that copy of Minute will be supplied to him on receipt of P.R.file from the Chief Office, Chennai as no spare copy is readily available in this office." 11. In this regard, the learned counsel relied on a judgment of the Division Bench of this Court in The General Manager Canara Bank (Head Officer), Bangalore and the Executive Engineer Canara Bank (Head Office), Bangalore Vs. L.M.V.Devakumar, Senior Manager, Canara Bank, District Co-ordinator, Kancheepuram reported in MANU/TN/0827/2007 wherein, this Court has held that disagreement on the findings of the Enquiry Officer should be arrived only after hearing the delinquent. Paragraph 10 of the judgment is extracted hereunder:- 10.Regulation 7(2) does not specifically state that when the Disciplinary Authority disagrees with the findings of the Enquiry Officer and proposes to come to a different conclusion, opportunity of hearing should be granted to the delinquent employee. A similar question came up for consideration before the Supreme Court in Punjab National Bank v. Kunji Behari Misra (1998 II LLJ 809) and 3-Judge Bench of the Supreme Court, after referring to earlier decisions, held as follows: Where the Disciplinary Authority differs with the view of the Inquiry Officer and proposes to come to a different conclusion there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and https://hcservices.ecourts.gov.in/hcservices/ iniquitous that where the charges officers succeed before the Inquiry Officer, they were deprived of representing to the Disciplinary Authority before that authority differs with the Inquiry Officer's report and while recording a finding of guilt, impost punishment on the officer. In any such situation, the charged officers must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. The Supreme Court further 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 Inquiry 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 Inquiry 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 Inquiry Officer. The principles of natural justice require, the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged with misconduct to file a representation before the Disciplinary Authority records its findings on the charges framed against the officer." 12. I am of the considered view that the matter is squarely covered by the judgment of the Division Bench of this Court referred to above. Hence, the impugned order is liable to be quashed and accordingly, it is quashed. The writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar r n s To 1. Superintendent of Police District Police Office Perambalur https://hcservices.ecourts.gov.in/hcservices/ 2. Superintendent of Police District Police Office Trichy – 620 001 3. Commissioner of Police City Police Office Trichy – 620 020 + 1 cc to The Govt., Pleader, SR 71747 + 1 cc to M/s.Bala & Daisy, Advocate, Sr 71164 W.P.NO.49499 OF 2006 TS (CO) RH (29.1.10) https://hcservices.ecourts.gov.in/hcservices/