IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.02.2011 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI W.P.No.10069 of 2004 S.Ponmani ... Petitioner Vs. 1.State of Tamilnadu, rep. by its Secretary to Government, Co-operation, Food and Consumer Protection Department, Fort St. George, Chennai-9. 2.The Registrar of Co-operative Societies, 170, Periyar EVR High Road, Kilpauk, Chennai-10. 3.The Additional Registrar of Co-operative Societies, (Marketing, Planning and Development), Kilpauk, Chennai-10. 4.Co-operative Sub-Registrar/ Enquiry Officer, Special Investigation Squad (Inspection), O/o. Registrar of Co-operative Societies, Chennai-10. 5.The Additional Registrar of Co-operative Societies (Consumer Activities), O/o. Registrar of Co-operative Societies, Chennai-10. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus or any other appropriate Writ, Order or direction in the nature of a Writ directing the Respondents to consider the defence of the Petitioner in pursuant to the charge memo issued by the 1st Respondent vide Letter No.20234/C2/2000-7 dated 26.3.2002 and pass final orders within a stipulated time. Prayer Amended as per order dt.24.1.2011 made in MP 63/2011 For Petitioner : Mr.T.P.Prabakaran For Respondents : Mr.N.Senthilkumar Addl. Government Pleader. O R D E R Petitioner seeks Writ of Mandamus forbearing the Respondents https://hcservices.ecourts.gov.in/hcservices/ from initiating any disciplinary action against the Petitioner on the basis of the report of 4th Respondent under Sec.81 of Tamil Nadu Co-operative Societies Act and also to direct the Respondents to consider the defence of the Petitioner. 2. Relevant facts in brief are as follows:- During the period 20.01.1996 to 17.06.1997, Petitioner was working as Joint Registrar of Co-operative Societies, Perambalur region. On complaints received that certain irregularities have been committed in the purchase of burglary alarms by Primary Agricultural Co-operative Banks and other Co-operative Institutions in Perambalur region, a fact finding enquiry was ordered. In the fact finding enquiry, it was observed that there is prima facie evidence of irregularities in such purchase, a statutory enquiry under Sec.81 of Tamil Nadu Co- operative Societies Act [for short 'Act'] was ordered into the affairs of Primary Agricultural Co-operative Banks and other Institutions numbering 91 in Perambalur region by the Proceedings Rc.166533/98 SISI dated 20.5.1999 of 3rd Respondent-Additional Registrar (Marketing Planning and Development). 3. In his report dated 08.11.1999, the 4th Respondent-Enquiry Officer reported that 91 Co-operative institutions in Perambalur region have installed burglary alarms by putting higher price than the value of the instruments to a company i.e. Co-operative Management Consultancy Services, Coimbatore. Enquiry Officer reported that burglary alarms were purchased at a higher rate and thereby loss of Rs.11,74,648.50 was caused to 91 Societies. In his report, Enquiry Officer suggested for initiating surcharge action under Sec.87 of the Act against the Petitioner and other officers. 4. Upon examination of enquiry report and suggestion of the Enquiry Officer, the Registrar of Co-operative Societies [2nd Respondent] instructed the Regional Joint Registrar, Perambalur to initiate disciplinary proceedings against the departmental officers and also addressed the Government to initiate disciplinary action against the Petitioner, the then Joint Registrar of Perambalur region and also one K.Jayabalan, Deputy Registrar, Ariyalur. As per letter No.20234/CE2/2000-7 Co-operation, Food and Consumer Protection Department dated 26.3.2002, Government initiated disciplinary proceedings against the Petitioner. 5. Petitioner asked for Sec.81 report. By the Proceedings dated 9.5.2003, Petitioner was informed that the records is voluminous and therefore, directing the Petitioner to peruse the report and take notes. Petitioner did not submit his explanation. Therefore, Thiru.A.Abdul Salam, I.A.S. was appointed as Enquiry Officer to conduct oral enquiry by Proceedings Rc.78216/2000 DA.1 dated 31.03.2004. It is alleged that Petitioner did not participate in the enquiry. Number of witnesses were examined by the department and Enquiry Officer has submitted his exparte report dated 16.9.2004. https://hcservices.ecourts.gov.in/hcservices/ 6. After being served with the charge memo dated 05.4.2002 and after Enquiry Officer was appointed, Petitioner has filed the Writ Petition on 15.4.2004 challenging the appointment of Enquiry Officer and to direct the Respondents to forbear from conducting any enquiry. 7. Case of Petitioner is that initiation of disciplinary proceedings under Sec.81 of the Act is illegal and as per Sec.81 of the Act, Registrar alone is competent to hold enquiry or to direct the person to hold enquiry. Further grievance of Petitioner is that under Sec.81 of the Act Enquiry Officer cannot order for initiation of disciplinary proceedings against another Officer who is working in the same cadre and as per Sec.81(6) of the Act, only Registrar alone is competent to pass order in writing. Main grievance of Petitioner is that after issuing the charge memo without affording opportunity to the Petitioner to go through the documents and to defend his case and without giving adequate opportunity to the Petitioner, Enquiry Officer hastily proceeded with the enquiry and therefore, seeks direction to the Respondents to consider the defence of the Petitioner. 8. By filing elaborating counter, Respondents have contested the Writ Petition contending that 3rd Respondent-Additional Registrar (Marketing Planning and Development) is competent authority to initiate action under Sec.81 of the Act. As per the powers conferred on him in G.O.Ms.No.269, Co-operative Department dated 8.6.1988, 3rd Respondent has power to direct a person to hold an enquiry. According to Respondents, inspite of several opportunities given, Petitioner did not co-operate in the domestic enquiry and only after giving sufficient opportunities, Enquiry Officer was appointed and since Petitioner failed to appear before the Enquiry Officer to defend his case, Enquiry Officer proceeded and decided the matter exparte. 9. Mr.T.P.Prabakaran, learned counsel for Petitioner mainly contended that at the time of filing of Writ Petition, interim stay was granted on 17.4.2004 and inspite of interim stay being communicated to the Respondents, Enquiry Officer proceeded with the enquiry and the report submitted by the Enquiry Officer is vitiated due to violation of principles of natural justice. It was further contended that even though Petitioner asked for copy of the report under Sec.81 of the Act without giving him sufficient opportunity to peruse the report before ever Petitioner could submit his defence, Enquiry Officer was appointed who hastily proceeded with the domestic enquiry and therefore, the entire proceeding is vitiated due to violation of principles of natural justice. 10. Taking me through various dates and events, Mr.N.Senthilkumar, learned Additional Government Pleader has submitted that inspite of sufficient opportunities, Petitioner did not submit his explanation to the charge memo dated 05.4.2002 and Petitioner also did not co-operate to participate in the domestic https://hcservices.ecourts.gov.in/hcservices/ enquiry and only after giving due opportunities, Enquiry Officer was appointed. It was further submitted that out of 63 witnesses, 54 witnesses appeared before the Enquiry Officer and since Petitioner failed to appear before the Enquiry Officer to defend his case and failed to avail the opportunities extended to him, Enquiry Officer proceeded with the enquiry and Petitioner having not co-operated in the domestic enquiry cannot complain of violation of principles of natural justice. 11. When the Petitioner worked as Joint Registrar of Co- operative Societies in Perambalur region from 22.1.1996 to 17.6.1997 is alleged to have committed irregularities in purchase of burglary alarms to the extent of Rs.11,74,648.50 to 91 Societies. Based on Sec.81 enquiry report and letter of the Registrar of Co-operative Societies, Government initiated disciplinary proceedings against the Petitioner as per Government letter dated 26.03.2002. Petitioner was served with charge memo on 05.04.2002 and copies of documents were sent to him by 2nd Respondent's office letter dated 27.5.2002. Thereafter, by his letter dated 25.02.2003, Petitioner has made a request to furnish copy of Sec.81 enquiry report. By the Proceedings Na.Ka.78216/2001 dated 9.5.2003, Petitioner was informed that the records is voluminous one [850 pages] and therefore, Petitioner was asked to peruse the report and take notes and if necessary, Petitioner himself can take the copies at his cost. But the Petitioner has not submitted his explanation. According to Petitioner, since there was State wide strike by Government servants due to which Petitioner could not get the copy of enquiry report. 12. By the Proceedings dated 31.03.2004, Enquiry Officer Thiru.A.Abdul Salam, I.A.S. was appointed to conduct the oral enquiry. On 15.04.2004, Petitioner has filed this Writ Petition challenging the initiation of disciplinary proceedings. On 17.04.2004 even though interim stay was granted, Respondents have proceeded to conduct the oral enquiry. In the counter-affidavit, it is averred that out of 63 witnesses, 54 witnesses appeared before the Enquiry Officer and their evidences were recorded. Enquiry Officer proceeded the matter exparte and concluded the enquiry and submitted his report on 16.09.2004. As pointed out earlier, grave charges are levelled against the Petitioner for allegedly causing loss of Rs.11,74,648.50 to the Co-operative Societies. According to Petitioner, he has substantial defence in the disciplinary proceedings and inspite of interim stay granted by this Court on 17.4.2004, Enquiry Officer hastily proceeded with the enquiry. Since grave charges are levelled against the Petitioner, it would have been appropriate if Enquiry Officer afforded reasonable opportunity to the Petitioner. 13. One of the principles of natural justice is audi alteram partem (hear the other side). It is settled law that principles of natural justice have to be complied with. But it is equally well settled that the concept of "natural justice" is not a fixed one. Rules of natural justice are not embodied rules and they cannot be imprisoned within a straitjacket of a rigid formula. https://hcservices.ecourts.gov.in/hcservices/ 14. Observing that doctrine of natural justice cannot be imprisoned within the straightjacket or a rigid formula, in AIR 1968 SC 850 [Union of India v. P.K.Roy], the Supreme Court observed as follows:- "11. .... the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case." 15. In (1969) 2 SCC 262 [A.K.Kraipak v. Union of India], the Supreme Court held as follows:- "20. .... What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts f that case." 16. Elaborating upon the principles of natural justice, in (2006) 8 SCC 776 [P.D.Agrawal v. SBI], the Supreme Court indicated that principles of natural justice are flexible and in the recent times, they had undergone a "sea change". The effect of violation of principles of natural justice had to be considered in the facts and circumstances of each case. If there is no prejudice to the employee, an action cannot be set aside merely on the ground that no hearing was afforded before taking a decision by the authority. 17. Observing that whether principles of natural justice is complied with or not has to be determined having regard to fact- situation obtaining in each case, in 2006 AIR SCW 6271 [Shekhar Ghosh v Union of India], the Supreme Court has held thus:- "22.Requirements to comply with the principles of natural justice would, therefore, vary from case to case. If upon giving an opportunity of hearing to an affected employee, it is possible to arrive at a different finding, the principles of natural justice must be complied with. We may notice that recently in Union of India & Ors. V. Bikash Kumar (2006 (10) SCALE 86) a Division Bench of this Court opined: "......... It is now trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a https://hcservices.ecourts.gov.in/hcservices/ given situation require compliance of the principles of natural justice. It is only in a case where the mistake is apparent on the face of the records, a rectification thereof is permissible without giving any hearing to the aggrieved party." In the above case, the Supreme Court held that the principles of natural justice, having regard to the fact-situation obtaining in each case. A clear distinction has been laid down between cases where there was no hearing at all and the case where there was mere technical infringement of the principle. In the instant case, it is not a mere technical infringement of the principle; but it is case of no hearing at all. 18. Learned Additional Government Pleader has submitted that Petitioner was afforded sufficient opportunity and that he failed to submit his explanation and also did not co-operate in participating with the enquiry and therefore, Petitioner cannot complain of violation of principles of natural justice. It was further submitted that Petitioner has ordered purchase of burglary alarms immediately within two days of his assuming charge and that non- supply of Sec.81 report and the enquiry proceeded exparte could not have caused any prejudice or miscarriage of justice to the Petitioner. It was therefore contended notwithstanding that Petitioner did not participate in the disciplinary proceedings, enquiry cannot be said to be vitiated. 19. As pointed out earlier, grave charges are levelled against the Petitioner. He ought to have been afforded reasonable opportunity to peruse Sec.81 enquiry report. After the Enquiry Officer was appointed, Petitioner has approached this Court and also obtained interim stay of the disciplinary proceedings on 17.04.2004 which was also communicated to the Respondents. Because of pendency of the Writ Petition perhaps the Petitioner has not participated in the enquiry. Having regard to the gravity of charges, non-affording of opportunity to the Petitioner has resulted in prejudice to him and therefore, report of Enquiry Officer cannot be sustained. Respondents are to be directed to afford reasonable opportunity to the Petitioner. Learned counsel for Petitioner has submitted that Petitioner is going to be superannuated by the end of March 2011. Having regard to the submissions, it would be appropriate to direct the Respondents to expedite the enquiry. 20. In the result, report of Enquiry Officer dated 16.9.2004 is set aside and this Writ Petition is allowed. Respondents are directed to proceed with the matter afresh. Petitioner shall peruse the documents and shall submit his explanation to the charge memo dated 05.4.2002 within a period of four weeks from the date of receipt of copy of this Order and thereafter, Respondents shall proceed with the matter in accordance with law. Respondents shall https://hcservices.ecourts.gov.in/hcservices/ complete the enquiry within a period of three months from the date of appointment of Enquiry Officer. Petitioner is directed to co- operate with the disciplinary proceedings. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar bbr To 1.The Secretary, Co-operation, Food and Consumer Protection Department, Fort St. George, Chennai-9. 2.The Registrar of Co-operative Societies, 170, Periyar EVR High Road, Kilpauk, Chennai-10. 3.The Additional Registrar of Co-operative Societies, (Marketing, Planning and Development), Kilpauk, Chennai-10. 4.The Sub-Registrar/Co-operative Enquiry Officer, Special Investigation Squad (Inspection), O/o. Registrar of Co-operative Societies, Chennai-10. 5.The Additional Registrar of Co-operative Societies (Consumer Activities), O/o. Registrar of Co-operative Societies, Chennai-10. +1cc to Mr.T.P.Prabakaran, ADvocate Sr 7587 +1cc to Govt. Pleader Sr 8090 BKY(CO) km/22.2. W.P.No.10069/2004 https://hcservices.ecourts.gov.in/hcservices/