IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.JEYAPAUL W.P. NO. 15287 OF 2000 & M.P. NOS. 22246 & 22247 OF 2000 1. A. Nagarathinam (deceased) 2. Padmavathy 3. Gnana Sampath 4. Gowri 5. Radhakrishnan 6. Jeyamani ... Petitioners. (Petitioners 2 to 6 substituted as LRs of the deceased petitioner A. Nagarathinam as per the Court order dated 18.12.2008 in W.P.M.P. No. 1840 of 2008 in W.P. No. 15287 of 2000.) Vs. 1. The Commissioner Corporation of Madurai Madurai 2. The Appeals Committee, Corporation of Madurai Madras 3. The Commissioner and Secretary to Government of Tamil Nadu Municipal Administration and Water Supply Department Fort St. George, Chennai - 600 009. ... Respondents. PRAYER: Writ petition has been filed Under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus or any other appropriate writ, order or direction of like nature calling for the records of the 1st respondent passed in proceedings H2/107989/90 dated 26.03.1997 as confirmed by proceedings of the 2nd respondent in resolution No. 19 dated 18.03.1998 communicated by the 1st respondent in the letter dated 31.05.1998 and quash the same and direct the respondents to grant to the petitioner all consequential and attendant benefits such as backwages, promotion, implementation of revised scale of pay upto the date of retirement and subsequently all the retirement benefits due to him on setting aside the order of dismissal from service. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : M/s. S.J. Jagadev & P.V. Preeja For R1 to R3 : Mr. Suresh Kumar Learned Govt. Advocate O R D E R This is an unfortunate case where the Chief Pharmacist attached to the Corporation of Madurai, who was suspended from service way back on 12.06.1981 waged many battles before this Court as against the Corporation of Madurai and ultimately died during the pendency of the current writ petition leaving his legal heirs virtually in the lurch. They having unfortunately stepped into the shoes of the deceased Chief Pharmacist contest this matter in order to get at least the pensionary benefits on the demise of the deceased Pharmacist A. Nagarathinam. 2. The deceased petitioner A. Nagarathinam was slapped with three major charges. The first major charge was framed on 14.07.1980. The said charge would read that the deceased A. Nagarathinam did not hand over the key of the Hospital where he was working as the Chief Pharmacist when he proceeded on leave. The second major charge was framed against him on 04.06.1981. The said charge would read that he failed to maintain the income and expenditure accounts and as a result of which, he showed supine indifference to his official duty. The third major charge was framed on 09.07.1981, which would read that he obstructed the substitute Doctor from performing his official duty. About one month prior to the framing of the third charge, the petitioner A. Nagarathinam was suspended from service. 3. He was slapped with a single show cause notice by the 1st respondent on 03.08.1983 calling upon him to answer as to why he should not be removed from service. By the by, all the aforesaid three major charges, which arose on different dates were combined together in the aforesaid show cause notice. 4. The fact remains that the deceased A. Nagarathinam had filed proceedings in W.P. 9505 of 1983 to direct the 1st respondent to pay subsistence allowance. Unfortunately, the Enquiry Officer Dr. Vijayaraghavan, who was appointed by the 1st respondent to enquire into the 2nd and 3rd major charges took full additional charge as Commissioner, Corporation of Madurai, passed a final order of punishment removing the petitioner A. Nagarathinam from service, which provoked him to file a writ petition in W.P. 13403 of 1990 praying to quash the said order of punishment after, of course, exhausting appeal remedy. This Court specifically directed the 1st respondent to pass appropriate orders in the enquiry embarked upon as against the petitioner A. Nagarathinam, having regard to the contention raised by him within the time frame fixed by this Court and allowed the writ petition filed by him to quash the punishment awarded by the 1st respondent. https://hcservices.ecourts.gov.in/hcservices/ 5. The petitioner A. Nagarathinam had consistently taken a stand that the enquiry entrusted to the two different Enquiry Officers namely Dr. Vijayaraghavan and Dr. Thiyagraj were not completed and as a result of which, the enquiry report could not be served on him. He has also set up a plea that the material witnesses were not produced for examination during the course of enquiry. 6. The 1st respondent, after disposal of the writ petition in W.P. No. 13403 of 1990 giving the aforesaid direction to the 1st respondent, simply appointed a Chief Accountant M. Panchacharam to enquire into the charges framed as against the petitioner A. Nagarathinam. The said Enquiry official, having simply adverted to each and every charge, made note of the reply given by the petitioner A. Nagarathinam. The said proceeding containing the nature of charges and reply given by the petitioner herein has been referred to as the enquiry report by the 1st respondent in the impugned order passed dismissing the petitioner A. Nagarathinam from service. But, unfortunately, the witnesses examined by Dr. Vijayaraghavan and Dr. Thiyagaraj were meticulously referred to by the 1st respondent in the final order passed by him. 7. The learned counsel appearing for the petitioners would submit that the 1st respondent failed to comply with the direction flowed from this Court in W.P. No. 13403 of 1990. No fresh enquiry was conducted by the 1st respondent before passing a final order nor was the report of the enquiry served on the petitioner A. Nagarathinam. The 1st respondent has committed an error in referring to the deposition of the witnesses examined before the Enquiry Officer namely Dr. Vijayaraghavan and Dr. Thiyagaraj. It is further submitted that the de novo enquiry conducted by the Chief Accountant M. Panchacharam is also found not to be the full fledged enquiry. Therefore, it is submitted that the final order passed by the 1st respondent dismissing the petitioner A. Nagarathinam from service is perverse and therefore the same will have to be set aside by this Court. 8. The learned counsel appearing for the respondents would vehemently submit that the Enquiry Officer namely M. Panchacharam, Chief Accountant was appointed by the 1st respondent and that only after the report submitted by him, a detailed final order, after giving an opportunity to the petitioner A. Nagarathinam to put forth his final version, was passed by him. Referring to the judgment passed by this Court in W.P. No. 13403 of 1990, he would submit that this Court had already observed that the Enquiry report was already submitted by the Enquiry Officer appointed by the 1st respondent to go into the series of charges levelled as against the petitioner A. Nagarathinam. The 1st respondent, being an appointing authority, is competent to pass final order referring to the earlier report as well as the report submitted by the M. Panchacharam, Chief Accountant in the aftermath direction flowed from this Court. Therefore, he would submit that there is no illegality or impropriety committed by the 1st respondent in passing the final order, which is under challenge. https://hcservices.ecourts.gov.in/hcservices/ 9. There is no dispute to the fact that Dr. Thiyagaraj was appointed as an Enquiry Officer to enquire into the first major charge levelled as against the petitioner A. Nagarathinam that he did not hand over the key of the Hospital when he proceeded on leave and Dr. Vijayaraghavan was appointed as an Enquiry Officer to go into the 2nd and 3rd major charges namely the petitioner did not maintain the income and expenditure accounts and that he also obstructed the Substituted Doctor from performing his official duty. 10. The petitioner A. Nagarathinam has taken a stand that the enquiry conducted by Dr. Vijayaraghavan and Dr. Thiyagaraj were in the mid way. The aforesaid stand of the petitioner A. Nagarathinam is fortified by the fact that the 1st respondent is not in a position to produce the enquiry reports submitted by Dr. Vijayaraghavan and Dr. Thiyagaraj. There is also no reference to the enquiry reports filed by Dr. Vijayaraghavan and Dr. Thiyagaraj in the reference portion of the final order, but there is only a reference to the report submitted by M. Panchacharam, Chief Accountant appointed by the 1st respondent to conduct de novo enquiry. 11. The report submitted by M. Panchacharam, Chief Accountant cannot also be classified as the report by the Enquiry Officer inasmuch as it does not refer to the version put forth by the rival parties through the witnesses examined on either side. The report also does not reflect that the petitioner A. Nagarathinam was given an opportunity to produce evidence on his side. The report simply records the gist of the charges and the cryptic reply given by the petitioner A. Nagarathinam. By no stretch of imagination, such jottings of the Chief Accountant appointed to enquire into the grave charges can be classified as the enquiry report. Unfortunately, such report was based for awarding capital punishment of dismissal from service of an employee working under the 1st respondent. 12. Referring to the impugned order passed by the 1st respondent, it is found that the 1st respondent chose to refer to the witnesses examined by the erstwhile enquiry officer namely Dr. Vijayaraghavan and Dr. Thiyagaraj. Such a reference cannot at all be made by the appointing authority while passing the final order, when enquiry report of those two Enquiry Officers were not circulated to the petitioner A. Nagarathinam. 13. The 1st respondent should have continued the enquiry proceedings through the enquiry officer appointed by him from the stage at which the enquiries stood at the time when his predecessor, who was the in-charge passed a final order of removal from service on 17.11.1986. If at all, those Enquiry Officers had already completed their enquiry and submitted their report, copies of those reports should have been served on the petitioner A. Nagarathinam and after giving him a personal enquiry, the final order should have been passed by him in his capacity as the https://hcservices.ecourts.gov.in/hcservices/ appointing authority. In the alternative, he should have opted for de novo enquiry and the Enquiry Officer appointed by him should have given sufficient opportunity to the petitioner A. Nagarathinam and also to the department to lead their respective evidence. After the report followed by the full fledged enquiry conducted by him was served on the petitioner A. Nagarathinam, the final order should have been passed by the 1st respondent. 14. In the instant case, it is found that the enquiries already initiated by Dr. Vijayaraghavan and Dr. Thiyagaraj appointed by the 1st respondent were in the mid way and therefore their reports could not be circulated to the petitioner A. Nagarathinam. The de novo enquiry conducted by M. Panchacharam, Chief Accountant is also found not to be a full fledged enquiry giving opportunity to both the sides to lead evidence. As such, the report submitted by M. Panchacharam, Chief Accountant cannot be the basis for passing the impugned order by the 1st respondent. Therefore, this Court finds that the order impugned is completely perverse. 15. The case has now reached a peculiar situation where the deceased employee A. Nagarathinam cannot be directed to face enquiry, as he had already passed away. Unfortunately, his legal representatives are waging battles as against the Corporation of Madurai with the fond hope that they may get the pensionary benefits of A. Nagarathinam. It is well neigh impossible to direct any de nova enquiry to be conducted associating the deceased A. Nagarathinam in the enquiry. Therefore, the perverse order will have to be set aside and the 1st respondent will have to be directed to pay all backwages right from the day of suspension till he attained superannuation minus the subsistence allowance already given and the pensionary benefits to the legal representatives of A. Nagarathinam within a time frame. 16. In view of the above, the impugned order is set aside and the 1st respondent is directed to pay full backwages minus the subsistence allowance already given to A. Nagarathinam right from 12.06.1981 till he attained superannuation treating the petitioner A. Nagarathinam as reinstated in service and the pensionary benefits counting the entire services of A. Nagarathinam within a period of three months from the date of receipt of this order. Accordingly, the writ petition is allowed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Commissioner, Corporation of Madurai, Madurai. 2. The Appeals Committee, Corporation of Madurai, Madras. 3. The Commissioner and Secretary, to Government of Tamil Nadu, Municipal Administration and Water Supply Department, Fort St. George, Chennai - 600 009. 1 cc To Mr.S.J.Jagadev, Advocate, SR.14413. 1 cc To Mr.M.Sureshkumar, Advocate, SR.14369. W.P. No. 15287 of 2000 & M.P. Nos. 22246 & 22247 of 2000 KS(CO) RVL 22.03.2010 https://hcservices.ecourts.gov.in/hcservices/