IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:-17.08.2010 Coram:- The Hon'ble Mr. Justice T.RAJA Writ Petition No.40690 of 2006 (OA No.1370/2000) R.Radhakrishnan ... Petitioner vs. Revenue Divisional Officer, Vrithachalam, Cuddlore District. ... Respondent This Writ Petition came to be numbered under Article 226 of the constitution of India by way of transfer of O.A.No.1370/2000 from the file of Tamil Nadu Administrative Tribunal Madras to call for the records in Na.Ka.A1/6900/97, dated 21.7.1999, pertaining to the dismissal order passed by the respondent as against the petitioner and quash the same. For Petitioner : Mr.L.Chandrakumar, for Mr.P.Murugan For Respondent : Mr.S.Gopinathan, Addl. Govt. Pleader. O R D E R The petitioner-R.Radhakrishnan, filed the present Writ Petition (Originally O.A. No.1370 of 2000 on the file of the Tamil Nadu Administrative Tribunal, Chennai), seeking to quash the order of dismissal from service, passed against him by the respondent in his proceedings vide Na.Ka.A1/6900/97, dated 21.07.1999, and to issue a consequential direction for reinstatement, etc. 2. Mr.L.Chandrakumar, learned counsel appearing for the petitioner, by outlining the factual scenario, submitted that the petitioner was appointed as Village Administrative Officer (VAO) on 26.04.1984 and posted at Kachirpalayam Village, Vrithachalam Taluk, South Arcot District. On transfer, he served at various places and, finally, he was posted at Pazhayapattinam Village, Vrithachalam Taluk, on 13.06.1994, with an additional charge of https://hcservices.ecourts.gov.in/hcservices/ Kotteri Village and Mummudichozhagan Village. While serving there, he was placed under Suspension, by order dated 29.10.1997, alleging that he had misappropriated the land tax collected by him to the tune of Rs.10,689/-. After enquiry and a preliminary report received from the Deputy Tahsildar, Vrithachalam, the Tahsildar, Vrithachalam, found the petitioner 'not guilty' as there was no arrear of revenue to the Government and recommended for revocation of suspension and reinstatement of petitioner into service. Though the petitioner was under suspension for 9 months, no subsistence allowance was paid to him as per Rules. The respondent had no authority to place the petitioner under suspension for more than 6 months without obtaining the approval of his higher authority viz., the District Collector. Subsequently, the respondent issued a charge memo, dated 04.12.1998, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules (in short 'Rules'). In the meanwhile, on the ground that the suspension period was in continuance beyond six months and that the enquiry could not be completed yet, the suspension order came to be revoked without prejudice to the departmental proceedings, reinstating the petitioner into service by order, dated 08.08.1998, and posting him at Sirumangalam Village as VAO. Thereafter, in response to the charge memo, dated 04.12.1998, issued under Rule 17(b) of the Rules, the petitioner submitted a detailed explanation, denying all the charges. The Disciplinary Authority, not being satisfied with the explanation offered by the petitioner, ordered for holding of an enquiry by fixing the date of enquiry as 27.05.1999. After receiving the notice for the enquiry scheduled, the petitioner appeared before the Enquiry Officer - the Deputy Tahsildar, Vrithachalam. By pausing, learned counsel for the petitioner would submit that the enquiry was not conducted on 27.05.1999 for the reason that the said Deputy Tahsildar was transferred to some other place and in his place, one Mr.Sakthivel, Deputy Tahsildar, was posted. Curiously, the said Mr.Sakthivel informed the petitioner that he too was not appointed as Enquiry Officer, therefore, he could not conduct the enquiry on 27.05.1999 and that the enquiry would be conducted on some other date. The enquiry was scheduled to be held on 15.06.1999, on which date also, the petitioner appeared before the R.D.O., Vrithachalam, but, once again, the enquiry was not held on that day. In spite of the petitioner making his presence, his appearance was purposely not marked. Ultimately, due to political interference, the respondent refused to meet the petitioner and to conduct the enquiry. The petitioner was under the bona fide impression that subsequent date of hearing would be informed to him, however, to his shock and surprise, the petitioner received the impugned order of dismissal dated 21.07.1999 as though he remained ex-parte. Under such circumstances, learned counsel states that the order of dismissal passed, in an extraneous background, is not only bad in law but, inasmuch as the procedure https://hcservices.ecourts.gov.in/hcservices/ adumbrated under Rule-17(b) of the Rules have not been adhered to and complied with, the same is liable to be set aside. It is further submitted that, even assuming that the petitioner failed to appear for the enquiry, at least, before imposing major penalty of dismissal from service, the Disciplinary Authority should have issued a second notice, calling upon the petitioner to submit his further explanation having regard to the punishment proposed to be imposed, as to why such proposal should not be accepted against the petitioner. Admittedly, in the present case, the respondent, without complying with the mandatory procedure prescribed, straight away passed the impugned order - adopting a course in utter disregard to the principles of natural justice. By pointing out that the petitioner rendered unblemished services of 15 years and that, being the sole bread-winner of the family, he has been put to great hardship and sufferings due to the malicious attitude of the respondent, in that, the impugned ex parte order of dismissal came to be passed by the respondent on the ground that the petitioner repeatedly failed to appear before the Enquiry Officer despite the fact that the petitioner made appearance; learned counsel would reiterate his earlier contention that, failure on the part of the Disciplinary Authority to issue a second notice to the petitioner, calling upon him to submit his further explanation as regards the proposal to impose the major penalty, would undoubtedly vitiate the impugned order and hence, the order of dismissal cannot be sustained. 3. Per contra, Mr.Gopinath - learned Additional Government Pleader, appearing for the respondent, would submit that the petitioner, after receipt of the charge memo, dated 04.12.1988, failed to submit his explanation, denying the charges, whereupon, he was issued with a notice, dated 17.05.1999, to appear before the Zonal Deputy Tahsildar-2 at the office of the Tahsildar, Vrithachalam, on 27.08.1999 at 3 PM. Since the petitioner failed to appear on such date, the Disciplinary Authority, noting repeated absence of the petitioner before the Enquiry Officer appointed to deal with the task, imposed the punishment of dismissal from service as against the petitioner. Inasmuch as the petitioner did not prefer any appeal, the ultimate order cannot be interfered with by this Court while exercising jurisdiction under Article 226 of the Constitution of India. 4. I have considered the rival submissions having regard to the materials available on record. The petitioner was dealt with under Rule 17(b) of the Rules on the charge of having misappropriated the land tax collected by him in the capacity of VAO. No doubt, he was issued with a charge memo by the authority, calling upon him to submit https://hcservices.ecourts.gov.in/hcservices/ his explanation. In the affidavit filed in support of the petition as well as the arguments advanced before this Court by the counsel appearing for the petitioner, it is reiterated that the petitioner offered detailed explanation to the charge memo, denying all the charges. Per contra, the learned Additional Government Pleader appearing for the respondent, in his argument, as well as the Department, in the reply filed by them, denied the factum of the petitioner having filed any representation/statement to the charge memo issued under Rule 17 (b) of the Rules. Secondly, it is the emphatic stand taken by the counsel for the petitioner that when the petitioner was required to appear before the Enquiry Officer on 27.05.1999 and in fact, in response to the enquiry notice, he made his presence by appearing before the Zonal Deputy Tahsildar- 2, Vrithachalam, only due to political interference, the enquiry was purposely not conducted on the said date stating that the said Zonal Deputy Tahsildar was transferred to some other District and in his place, one Sakthivel, Deputy Tahsildar was posted. The said Officer also informed that he was not appointed as Enquiry Officer, therefore, he could not conduct the enquiry on 27.05.1999. By informing so, the petitioner was made to believe that the enquiry would be conducted on some other date ie., on 15.06.1999. Though the petitioner once again appeared on the said date before the R.D.O., Vrithachalam, again, the enquiry was not conducted. Apparently, due to extraneous reasons, the presence of the petitioner for his appearance on that day before the Revenue Divisional Officer was not marked. As a result, despite the appearance of the petitioner on 15.6.1999, the enquiry proceeded as if the petitioner was absent, holding him guilty of the charges. Be that as it may, even if the petitioner remained ex parte, taking note of the fact that the proceedings initiated are under Rule 17 (b) of the Rules, before imposing the major penalty of dismissal from service, the Disciplinary Authority should have issued a second notice, calling upon the petitioner to submit his further explanation with reference to the proposed punishment. 5. It is pertinent to point out here that one of the major requirements that should be complied with in such proceedings is that, before passing final orders, the person charged shall be heard in person and the competent authority shall furnish to him, a copy of the report of the enquiry or personal hearing or both and call upon him to submit his further representation within fifteen days which shall be taken into consideration before imposing the penalty, of course, such procedure need not be adopted in cases where penalty is to be imposed on the basis of conviction in a criminal court. It goes without saying that the Enquiry Officer or the disciplinary authority, who are administrative authorities, acting in quasi-judicial capacity, are obliged under the Rules, which operate in areas not covered by any https://hcservices.ecourts.gov.in/hcservices/ law validly made, to act objectively and dispassionately not only during the procedural stage of the enquiry but also at every phase until arriving at a final conclusion. 6. In the case on hand, as reflected from the proceedings of the respondent culminating in the order of dismissal, even though an Enquiry Officer was said to have been appointed to enquire into the charges, noting repeated absence on the part of the petitioner in the proceedings before the Enquiry Officer, the Disciplinary Authority proceeded against him in imposing the major penalty of dismissal from service. Seemingly, the procedure outlined above is conveniently given a go-bye. Neither the respondent nor the records produced by them clarifies/suggest that the vital requirement bound to be complied with before imposing major penalty of dismissal, as pointed out above, was in fact adhered to. 7. In that perspective, the Honourable Apex Court, in catena of its decisions including the one reported in Lav Nigam vs. ITI Ltd. (2006 (9) SCC 440), as well as this Court, in various pronouncements, consistently and repeatedly held that, in the event of imposing any major penalty under Rule 17(b) of the Rules, the Disciplinary Authority, after receipt of the findings of the Enquiry Officer's Report, is bound to give a notice calling upon the delinquent to submit his further representation. It is only after receipt of further representation, the Disciplinary Authority should arrive at a final finding of guilt. In the present case, even though there is no exhaustive report of the Enquiry Officer available except his notings regarding absence of the petitioner, the Disciplinary Authority, before proceeding to act upon such notings to pass the impugned order of dismissal, should have called upon the petitioner to submit his explanation having regard to his proposal of punishment. The course adopted by the Disciplinary Authority runs contra to the established tenets derived from the precedents. Hence, it is inevitable for this Court to interfere with the impugned order passed in violation to the principles of natural justice and to the requirements prescribed in the Rule itself, of course, while recording the statement made by Mr.L.Chandrakumar, learned counsel for the petitioner, across the bar that the petitioner will not claim wages for the period during which he was unemployed. 8. Consequently, the impugned order of dismissal passed by the respondent in Na.Ka.A1/6900/97, dated 21.7.1999, is set aside, with a direction to the respondent to proceed afresh against the petitioner on the basis of the charge memo, dated 04.12.1998, issued under Rule-17 (b) of the Rules by giving two weeks' time for submitting his explanation to the charges levelled against him https://hcservices.ecourts.gov.in/hcservices/ and thereafter, to proceed further, in accordance with law. In view of long pendency of the matter, the respondent is given four months' time from the date of receipt of copy of this order to complete the entire process. Writ Petition is disposed of accordingly. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Revenue Divisional Officer, Vrithachalam, Cuddlore District. +1cc to Mr.P.Murugan, Advocate Sr 61350 +1cc to Govt. Pleader Sr 60789 AKR(CO) km/13.9. W.P. No.40690 of 2006. https://hcservices.ecourts.gov.in/hcservices/