IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.4.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN Writ Appeal Nos.303 and 304 of 2009 & M.P.Nos.1 and 1 of 2009 1. Tamilnadu Slum Clearance Board, represented by its Chairman, No.5, Kamarajar Salai, Chennai-5. .. 1st appellant in W.A.No.303 of 2009 2. Chairman, Tamilnadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai-5. 3. Managing Director, Tamilnadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai-5. 4. A.Nedunchezhiyan .. Appellants 2, 3 and 4 in W.A.No.303 of 2009 and Appellants 1 to 3 in W.A.No.304 of 2009 vs. V.M.Sivanandam .. Respondent in both the Writ Appeals Writ Appeal No.303 of 2009 against the order dated 13.8.2008 passed by the learned single Judge in Writ Petition No.15752 of 2008 on the file of this Court. Writ Petition filed under Article 226 constitution of India, to issue a writ of Certiorarified Mandamus to call for the records of the second respondent issued in Na.Ka.No.A1/12479/2007 dated 31.12.07 and the proceedings of the first respondent issued in Appeal in Na.Ka.No.A1/12479/2007 dated 30.5.2008 and quash the same as illegal and direct the respondents to determine the pay and retirement benefits of the petitioner without reference to the impugned punishment and may be pleased to pass such further or other orders as the Court may deem fit. Writ Appeal No.304 of 2009 against the order dated 13.8.2008 passed by the learned single Judge in Writ Petition No.15753 of 2008 on the file of this Court. Writ petition filed under Article 226 https://hcservices.ecourts.gov.in/hcservices/ Constitution of India, to issue a writ of Certiorarified Mandamus, to call for the records of the 1st respondent issued in Na.Ka.No.A1/12479/2007 dated 2.4.2008 and quash the same as illegal and direct the respondents to determine the pay and retirement benefits of the petitioner without reference to the impugned punishment and may be pleased to pass such further or other orders as the Court may deem fit. For appellants : Mr.M.Venkatachalapathy, Senior Counsel for Mr.R.Chellamuthu For respondent : Mr.P.Chandrasekaran JUDGMENT (Judgment of the Court was delivered by S.J.Mukhopadhaya,J) Pursuant to departmental proceedings initiated against the respondent-writ petitioner, the appellants-Tamil Nadu Slum Clearance Board (for shot, 'the TNSCB') inflicted punishment of censure, by order dated 31.12.2007, i.e. on the date of retirement of the respondent-writ petitioner. After the retirement, by another order dated 2.4.2008, the TNSCB decided to treat the period of suspension as suspension. Both the punishment orders having been confirmed by the appellate authority, vide order dated 30.5.2008, two Writ Petitions were preferred by the respondent-writ petitioner, one against the order of punishment and the other, against, treating the order of suspension as suspension. The learned single Judge having allowed both the Writ Petitions by the impugned common order, the present two Writ Appeals have been preferred by the TNSCB. 2. As the Writ Appeals could be disposed of on a short point, it is not necessary to discuss all the facts, except the relevant one. 3. The respondent-writ petitioner, who was a Divisional Accountant under the TNSCB, was suspended on 10.7.2007 on the ground that he had acted against the direction of the High Court and was proceeded departmentally on 17.8.2007. An Enquiry Officer was appointed and after necessary enquiry, the Enquiry Officer submitted a report, exonerating the respondent from the charge(s). The respondent was to retire with effect from 31.12.2007 and in that view of the matter, he was allowed to re-join duty on 14.12.2007 on condition that he will not be hindrance to the enquiry. 4. Though the Enquiry Officer held the respondent not guilty of the charge(s), on the date of retirement, i.e. on 31.12.2007, the Chairman of the TNSCB, issued the impugned order dated 31.12.2007, in Na.Ka.No.A1/12479/07, imposing punishment of censure. The relevant English version of the order dated 31.12.2007, as was produced by the https://hcservices.ecourts.gov.in/hcservices/ counsel for the parties, reads as follows: "Charges framed against Thiru.V.M.Sivanandam, the explanation submitted by him to the charges and enquiry officer's report were considered. Enquiry officer's report is not accepted. He has failed to comply with the Court's order. Hence, charges against him are proved." 5. The appeal preferred by the respondent-writ petitioner having been rejected on 30.5.2008, the first Writ Petition was preferred. After retirement, when the question fell for consideration as to how the period of suspension from 10.7.2007 to 13.12.2007 be treated (counted), the Chairman of the TNSCB issued the impugned order No.A1/No.12479/2007, dated 2.4.2008 and ordered that the suspension period be treated as "suspension". In view of such order, the second Writ Petition in W.P.No.15753 of 2008 was preferred by the respondent herein. 6. The learned single Judge, by the impugned order dated 13.8.2008 passed in Writ Petition Nos.15752 and 15753 of 2008, having noticed that the Enquiry Officer held the respondent not guilty of the charges and that the reason for differing with the findings of the Enquiry Officer having been not recorded and communicated to the respondent-writ petitioner, set aside the order of punishment/censure, dated 31.12.2007 and the order dated 2.4.2008, by which it was ordered that the period of suspension be treated as suspension. 7. Learned Senior Counsel appearing for the TNSCB submitted that the charges issued were grave and already show cause notice had been issued on the charge-employee (respondent-writ petitioner), but he had replied and all those records were taken into consideration in the enquiry report. Under the law, after the show cause notice, if reply is found out to be not satisfactory, it is open for the TNSCB to impose minor punishment of censure even without holding regular departmental proceedings. Therefore, even if the Enquiry Officer had submitted a report, exonerating the respondent-writ petitioner, the TNSCB had power to ignore the same to give its own findings on the basis of the charge memo and the reply submitted by the charge- employee. Further, according to the learned Senior Counsel appearing for the appellants-TNSCB, the charges having been found proved, it was well within the jurisdiction of the TNSCB to treat the period of suspension as suspension for the purpose, so as to deny salary for the rest of the period. 8. Per contra, learned counsel appearing for the respondent-writ petitioner contended that when the Enquiry Officer once held the respondent not guilty of the charges, if the TNSCB refused to accept the same, it ought to have given reasons for not accepting the findings of the Enquiry Officer and should have given an opportunity https://hcservices.ecourts.gov.in/hcservices/ to the charge-employee (respondent-writ petitioner) to explain the position. 9. We have heard the learned counsel appearing for the parties and perused the records. 10. In the present case, it is not necessary to decide the legal issue raised by the parties, i.e. whether in the facts and circumstances, it was open for the TNSCB to ignore the enquiry report for imposing minor punishment of censure on the basis of the charge memo issued and the reply submitted by the charge-employee (respondent-writ petitioner), for the following reasons. 11. Under the law, it is always open for the employer to issue a show cause notice, giving details of the allegations, but the employee must be informed that if the reply is not satisfactory, the competent authority/disciplinary authority may impose punishment. It is only then the charge-employee will understand the gravity of the show cause notice as distinct from the explanation and can file truthful and effective reply. After the said reply, if the disciplinary authority comes to a definite conclusion that the allegations as levelled, have not been justified by the charge- employee by submitting a show cause reply, it is open for the disciplinary authority to impose any minor punishment under the law. But a decision in any case be given that the charges as framed have been proved or that the show cause reply is not satisfactory. 12. What has happened in the present case is that the disciplinary authority thought it proper to go for major punishment and therefore, suspended the respondent and initiated a regular departmental enquiry by issuance of charge sheet and appointing the Enquiry Officer. A day-to-day enquiry was held, giving opportunity to the charge-employee and enquiry report was also submitted. The disciplinary authority thereafter did not choose to give any reason for non-acceptance of the enquiry report. Simply saying that the respondent had not followed the Court's order, without even discussing as to what was the Court's order which was not followed by the respondent, held the charges proved. Therefore, it will be evident that the disciplinary authority failed to apply his mind to see as to what were the charges and whether those charges stand proved as to the materials placed on record and could be justified by the employee. The relevant English version of the impugned order as quoted above, having been passed without application of mind, we find no ground to uphold such order, nor for the said reasons, we are inclined to interfere with the impugned order passed by the learned single Judge. 13. Admittedly, the respondent retired from service on 31.12.2007 and on the date of retirement, the disciplinary authority hurriedly passed the order of punishment on the same day. The question as to https://hcservices.ecourts.gov.in/hcservices/ how the period of suspension shall be treated, was not even decided in the manner it is required to be determined, nor any application of mind was made on 2.4.2008 to decide whether the period of suspension should be counted towards duty or not. For such non-application of mind, if the learned single Judge has interfered with the impugned orders dated 31.12.2007/2.4.2008/30.5.2008, it does not call for any interference. 14. However, we accept the suggestion made by the learned Senior Counsel appearing for the appellants-TNSCB that as to how the period of suspension, i.e. from 10.7.2007 to 13.12.2007 should be counted and whether the employee would be entitled to full salary for the said period or not, should be decided by the disciplinary authority and for that purpose, the matter should have been remitted to the disciplinary authority. 15. We find from the impugned order dated 13.8.2008 passed by the learned single Judge that the learned single Judge has already directed the authority to determine the pay and terminal benefits of the respondent-writ petitioner and ordered to pay the same. The said order of the learned single Judge is modified to the extent that the matter is remitted to the disciplinary authority to decide independently as to how the period of suspension should be treated, and as to what salary the respondent-writ petitioner would be entitled to under the law, during the period of suspension, in view of the fact that no punishment was inflicted while the respondent was in service. For such determination, the TNSCB will give notice to the respondent-writ petitioner and may refer to the non-compliance of the High Court's order and after hearing the respondent, the TNSCB will pass appropriate orders, preferably within three months from the date of receipt/production of a copy of this judgment. 16. The impugned order dated 13.8.2008 passed by the learned single Judge stands modified to the extent indicated above. The Writ Appeals stand disposed of with the aforesaid observations/directions. No costs. The Miscellaneous Petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. cs https://hcservices.ecourts.gov.in/hcservices/ To 1. Tamilnadu Slum Clearance Board, represented by its Chairman, No.5, Kamarajar Salai, Chennai-5. 2. Chairman, Tamilnadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai-5. 3. Managing Director, Tamilnadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai-5. + 2 CC To Mr.P.Chandrasekaran, Advocate SR NO.16737/09 Writ Appeal Nos.303 & 304 of 2009 KGK {CO} TP/14.5.2009. https://hcservices.ecourts.gov.in/hcservices/