IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.06.2008 CORAM: THE HON'BLE MR.JUSTICE K.VENKATARAMAN WRIT PETITION NO.26477 OF 2006 .. T.Shanmugasundaram .. Petitioner vs. 1.The Commissioner Pollachi Municipality Pollachi. 2.The Director of Municipal Administration Chennai. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records relating to the order of the Ist Respondent dated 24.1.97 issued in the Ref No.Na.ka.No.11832/96 C1 and quash the same. For petitioner : Mr.R.Muthukannu for Mrs.K.Dhanalakshmi For respondents: Mr.S.Gopinathan Addl.Govt. Pleader .. ORDER The petitioner had approached the Tamil Nadu Administrative Tribunal at Chennai by filing O.A.No.2707 of 1997 challenging the impugned order dated 24.1.1997 of the first respondent imposing punishment of stoppage of increment for three years with cumulative effect. The said O.A. had been transferred to the file of this Court, on abolition of the Tribunal and renumbered as W.P.No.26477 of 2006. 2. The short facts which are necessary for the disposal of the present writ petition are as follows: https://hcservices.ecourts.gov.in/hcservices/ The petitioner started his career in Pollachi Municipality in the year 1975 and in the year 1992 he was promoted as Revenue Assistant. A charge memo dated 6.11.1996 was issued to him and an enquiry was conducted for the same. The Enquiry Officer seems to have submitted a report and the first respondent, differing with the report of the Enquiry Officer, had passed the impugned order dated 24.1.1997 imposing punishment of stoppage of increment for three years with cumulative effect. Challenging the said punishment, the petitioner had approached the Tribunal by way of O.A. which has been transferred to this Court, as referred to above. 3. 4. A reply affidavit had been filed on behalf of the first respondent wherein it has been pointed out that due to certain irregularities in the calculation and remittance of the provisional tax by the petitioner, he was placed under suspension pending disciplinary proceedings and subsequently, after perusal of the records, a charge memo dated 6.11.1996 was served on him duly mentioning the lapses and irregularities and 15 days' time was granted to the petitioner for offering his defence statement. The Municipal Commissioner appointed the Municipal Health Officer for conducing enquiry and the enquiry was also conducted on 12.12.1996. After thoroughly analysing the report of the Enquiry Officer and the defence statement submitted by the petitioner, the Municipal Commissioner came to the conclusion that the charges levelled against the petitioner were proved and passed final orders imposing punishment of stoppage of increment for three years with cumulative effect. The order imposing punishment on the petitioner was served on him on 24.1.1997. As per Rule 11 of the Tamil Nadu Municipal Services Rules, 1970, the petitioner should have preferred an appeal to the Director of Municipal Administration, Chennai, who is the appellate authority. The petitioner failed to avail the said opportunity. In order to gain further time, he made an application to the disciplinary authority on 12.3.1997 to issue a copy of the enquiry report conducted on 3.12.1996. Due to administrative reasons, the request of the petitioner was not complied with. In the reply affidavit, it is therefore sought for the dismissal of the petition. 4. Mr.R.Muthukannu, learned counsel appearing for the petitioner contended, (a) the report of the Enquiry Officer has not at all been furnished to the petitioner; (b) even assuming that the original authority who has imposed punishment, viz., the first respondent herein had differed from the finding of the Enquiry Officer that the charges levelled against the petitioner were not proved, the first respondent ought to have issued a show-cause notice to the petitioner stating why he https://hcservices.ecourts.gov.in/hcservices/ differed from the findings of the Enquiry Officer and calling upon the petitioner to offer his explanation and thereafter, the first respondent should have passed the order in one way or the other; and (c) thus, according to the learned counsel appearing for the petitioner, the said accepted procedure had not been followed and hence, the impugned order of the first respondent dated 24.1.1997 is liable to be set aside. 5. Per contra, the learned Additional Government Pleader appearing for the respondents contended that the charges against the petitioner are serious in nature and after giving an opportunity to the petitioner, the Enquiry Officer had been appointed and he also filed his report and since the first respondent had not accepted the report, he had dealt with each and every charge levelled against the petitioner and only after taking into account the report of the Enquiry Officer and the explanation of the petitioner, he imposed punishment and hence, there is no procedural lapse in the case on hand. Further, according to the learned Additional Government Pleader, the report of the Enquiry Officer need not be furnished to the petitioner. Thus, the learned Additional Government Pleader sought for dismissal of the writ petition. 6. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 7. It is the admitted case that the petitioner had been served with charge memo dated 6.11.1996. The lapses and irregularities in respect of which charges framed against the petitioner are, set out in the reply affidavit, as follows: "(a) He has remitted the profession tax amount collected on various dates directly into the Municipal Treasury without making proper check by the clerical Assistant. (b) He has not returned back the counterfoil of the profession tax receipt book No.252501 to 252600 to this office after its use was over. (c) He has failed to note down the receipt Nos. in the chellan register for the amount collected on 26.9.96 and thus violated the office procedure. (d) He has misappropriated the collected amount of Rs.1242/- in receipt No.252504 to 252511. (e) In order to hide the misappropriation committed by him, he got back the receipts from the parties by saying some irrelevant reasons and remitted the misappropriated amount after he was suspended. (f) He has collected the profession tax in certain wards which are not allotted to him." https://hcservices.ecourts.gov.in/hcservices/ 8. It is not in dispute that 15 days time had been granted to the petitioner to put forth his defence and the Municipal Commissioner had appointed Municipal Health Officer for conducting enquiry and the enquiry was conducted on 12.12.1996 and he filed the enquiry report before the original authority. But the question that arises now for consideration is whether the report of the Enquiry Officer had been furnished to the petitioner or not. In his original application, the petitioner had taken a definite stand that the enquiry report had not been furnished to him. In the reply affidavit filed by the first respondent nowhere it has been stated that the report of the Enquiry Officer had been furnished to the petitioner. Further, the petitioner has taken a definite ground that when the first respondent, the punishing authority, had disagreed with the finding of the Enquiry Officer ought to have issued notice to the petitioner before proceeding further. The learned counsel appearing for the petitioner emphasised this ground and submitted that the disciplinary authority, when he differs from the Enquiry Officer's report, should serve a show-cause notice on the delinquent concerned, giving reasons as to why he is disagreeing with the findings of the Enquiry Officer and call upon him to offer his explanation for the same and then, after considering the explanation, he should pass orders in one way or the other. According to the learned counsel, such procedure has not been followed by the first respondent before imposing punishment referred to above. While a specific ground to this regard has been taken in the original application, in reply affidavit no where it has been stated that the first respondent had served a show-cause notice on the petitioner giving reasons for disagreeing with the findings of the Enquiry Officer. When there is no such averment in the reply affidavit, it is presumed that the disciplinary authority had not served any show- cause notice on the petitioner calling upon the petitioner to explain his stand on the differing views of the disciplinary authority. 9. In this connection, the learned counsel appearing for the petitioner, drew my attention to the judgement reported in 2006 (3) Andhra Law Times 286 (D.B.) [Narinder Kumar vs. Union of India and others]. Paragraph 30 of the said judgement is usefully extracted hereunder: " 30. It is well settled that while the disciplinary authority is entitled to disagree with the findings of the enquiry officer, he is required to intimate the delinquent employee of the reasons which weighed with him in differing with the conclusions of the enquiry officer and give him an opportunity of submitting his objections thereto. Failure to do so would be in violation of principles of natural justice, which would result in the enquiry proceedings and the order of https://hcservices.ecourts.gov.in/hcservices/ punishment imposed being vitiated. The contention of Sri R.S.Murthy, learned Standing Counsel for the respondents, based on the judgement of the Supreme Court in Managing Director ECIL. vs. Karunakar (AIR 1994 SC 1074) and State Bank of Patiala v. S.K.Sharma (AIR 1996 SC 1669) that no prejudice was caused to the petitioner, cannot also be accepted. As has been held by the Apex Court in S.K.Sharma (cited supra), the prejudice doctrine has no application in a case where no opportunity or no notice was given to the delinquent employee. In the present case the petitioner was not put on notice regarding the Railway Board's tentative disagreement with the findings of the enquiry officer and was denied the opportunity of submitting his objections thereto. Since it is a case of no notice and no opportunity, and falls within the categories excluded in S.K.Sharma (cited Supra), the prejudice doctrine has no application." 10. In yet another decision reported in AIR 1998 SC 2713 [Punjab National Bank and others vs. Kunj Behari Misra] it has been held that if the Enquiry Officer's report is in favour of the delinquent and the disciplinary authority proposing to differ must give opportunity of hearing to the delinquent before recording his conclusion. Paragraph 17 of the said judgement is usefully extracted hereunder: " 17. These observations are clearly in tune with the observations in Bimal Kumar Pandit's case (AIR 1963 SC 1612) quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar's case (1994 AIR SCW 1050) the first stage required an opportunity to be given to the employee to represent to the disciplinary authority even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its finding. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the https://hcservices.ecourts.gov.in/hcservices/ delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority." 11. In yet another judgement reported in 2001 (3) Administrative Total Judgements 247 [State Bank of India and others vs. Arvind K.Shukla], the same view had been taken by the Hon'ble Apex Court. Paragraph 2 of the said judgement is usefully extracted hereunder: " 2. Mr.Sundravardan, the learned senior counsel appearing for the State Bank of India contended before us that in the case in hand, in fact, there has been no disagreement with the finding of the enquiring officer by the disciplinary, and on the other hand, the disciplinary authority on the accepted findings of the enquiring officer has recorded his conclusion differently on the basis of the relevant provisions of the Rules, and therefore the question of giving an opportunity to the delinquent that stage does not arise. To appreciate this contention, we have been taken through the findings of the enquiring officer and charges 1(a) and 1(d) as well as the reasonings and ultimate conclusion of the disciplinary authority on these two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer and opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3-Judge Bench decision of this Court in the case of Punjab National Bank & Others vs. Kunj Behari Misra (JT 1998 (5) SC 548). The Bench in the aforesaid case relied upon the earlier decision in the Institute of Chartered Accountants' case JT 1997 (6) SC 607 as well as the Ram Kishan case JT 1995 (7) SC 43 and came to hold that the view expressed in S.S.Kaushal 1995 (5) SLR 18 and M.C. https://hcservices.ecourts.gov.in/hcservices/ Saxena cases JT 1998 (2) SC 103 do not lay down the correct law. Mr.Sundravardan, however, brought to our notice yet another 3-Judge Bench decision in the case of Union Bank of India v. Vishwa Mohan JT 1998 (3) SC 118 and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in the Punjab National Bank case was not really there before the Court and Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL vs. B.Karunakar (JT 1993 (6) SC 1). In the absence of any contrary decision of a three-Judge Bench decision on the question in issue, we are bound by the earlier judgement of this Court in Punjab National Bank case, necessarily, therefore we do not find any merit in this appeal, which stands dismissed." 12. In yet another decision reported in 2006 (9) SCC 440 [Lav Nigam vs. Chairman & Managing Director, ITI Ltd., and another] a similar view has been taken and paragraphs 10 and 12 are usefully extracted hereunder: " 10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed. 11. xxxx 12. This view has been reiterated in Yoginath D.Bagdge vs. 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: https://hcservices.ecourts.gov.in/hcservices/ "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 enquiring authority, it would be given 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 disagree with the findings recorded by the enquiry authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with." 13. Considering the above facts and circumstances of the case and considering the fact that the report of the Enquiry Officer had not been furnished to the petitioner and also considering the fact that the disciplinary authority who proposed to differ from the report of Enquiry Officer, had not given any opportunity of hearing to the delinquent, the petitioner herein, before imposing punishment, and also considering the judgements referred to above, I am inclined to set aside the order of the first respondent dated 24.1.1997 and the writ petition stands allowed. It is needless to say that the first respondent is at liberty to pass orders afresh after following the procedure known to law. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kh https://hcservices.ecourts.gov.in/hcservices/ To 1.The Commissioner Pollachi Municipality Pollachi. 2.The Director of Municipal Administration Chennai. + 1 CC To Mr.R.Muthukannu, Advocate SR NO.31581 + 1 CC To Mr.C.Kalaichelvan, Advocate SR NO.31622 + 1 CC To Mrs.Dhanalakshmi. Advocate SR NO.31750 Order in W.P.No.26477 of 2006 BVR {CO} TP/10.7.08. https://hcservices.ecourts.gov.in/hcservices/