IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.11.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.12325 of 2010 and M.P.No. 1 of 2010 P.Chellapandian .. Petitioner Vs. 1.The chairman and Principal, Secretary to the Tamil Nadu Government for Adi-Dravidar and Tribal Welfare, Secretariat, Fort St. George, Chennai-9. 2.The Managing Director, Tamil Nadu Adi Dravidar Housing and Development Corporation Limited, TNHB shopping Complex, Thirumangalam, Chennai-101. .. Respondents Writ petition is filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records on the file of the second respondent in proceedings No.A3/8630/08-1 dated 28.1.2010 and quash the same as illegal, incompetent and without jurisdiction. For Petitioner : Mr.V.Raghavachari For Respondents : Mr.V.Viswanathan, AGP (R1) Mr.R.Subramanian (R2) O R D E R The writ petition is filed to quash the order of the second respondent dated 28.1.2010 in proceedings No.A3/8630/08-1 as illegal, incompetent and without jurisdiction. 2.The petitioner herein joined the office of the first respondent during 1989 as Assistant Engineer, Tirunelveli and was periodically promoted to the post of Executive Engineer and was working so at Tiruchirapalli Division. While so, he was by an order dated 21.2.2010 transferred to Tirunelveli Division and the petitioner challenged the same by way of writ petition in WP.(MD) No.961 of 2010 as unwarranted and without jurisdiction and obtained interim stay. When the same was brought to the notice of the respondents, the same was followed by two orders dated 15.2.2010 and 16.2.2010 keeping the order of transfer in abeyance and posting https://hcservices.ecourts.gov.in/hcservices/ another person to take full additional charge of Executive Engineer, Tiruchirapalli Division which was held by the petitioner before the order of transfer. The same was also followed by another order dated 3.3.2010 calling upon the petitioner to explain his reasons for not joining duty in Tiruchirapalli Division. In pursuance of the same, the petitioner joined the duty in Tiruchirappali Division on 8.3.2010 and the same was intimated to the second respondent. While so, the petitioner was served with the order of the second respondent dated 28.1.2010 in his proceedings A3/8630/08-1 which is impugned herein de-promoting the petitioner from the post of Executive Engineer to Assistant Engineer. 3.According to the petitioner, the order purported to be the final order of the departmental proceedings initiated against him during 2008 is anti dated and only to de-promote the petitioner without being considered for the post of regular Executive Engineer and the same is passed only by reason of his having approached the High Court against the order of his transfer and the order is tainted with fraud and abuse of power and is apparently illegal. According to the learned counsel for the petitioner, the order is violative of service rules and is an outcome of total non- application of mind and misuse of the power and discriminatory in nature offending Article 14 of the constitution of India by reason of disparity in the nature of punishment imposed upon the petitioner and in relieving his co-delinquent with fine of Rs.500/-. 4.Per contra, the learned standing counsel for the respondents would attempt to justify the action of the respondents by saying as the petitioner has due to act of commissions and omissions alleged against him, failed to discharge his basic duty as Assistant Executive Engineer in the course of construction of hostels for poor SC/ST boys and girls and the same resulted in loss to the corporation and he was duly charge sheeted and the departmental enquiry was initiated against him and the final order imposing punishment was passed after due enquiry and after going into the merits of the case in exercise of appropriate administrative authority of the respondents herein and the punishment imposed is proportionate to the lapses on the part of the petitioner. 5.Heard the rival submissions made on both sides and perused the materials available on record. 6.The typed set of papers filed on the side of the petitioner contains all the records relating to the departmental proceedings initiated against the petitioner during 2008 resulting in the impugned order and relating to the order of transfer which is the subject matter of challenge in W.P.No.961/2010. The reading of the same reveals that while the petitioner was employed in the office of the second respondent, Tiruchirapalli Division, Science Lab Building to Adi Dravidar Welfare Higher Secondary School at Keelaanbil, Trichy District was constructed and an excess sum of Rs.41,878/- was paid to the contractor towards additional construction as against the specified rate for construction and the https://hcservices.ecourts.gov.in/hcservices/ same was by letter dated 25.9.2008 intimated to the Executive Engineer by General Manager (Technical) along with the statement and on the basis of the same, department proceedings was initiated against the petitioner and one Kaliamurthy who was then Junior Engineer on 13.10.2008 and the petitioner submitted his explanation to the charges on 13.11.2008 and not satisfying with the same, departmental enquiry was proceeded with and the Enquiry officer submitted his enquiry report on 18.2.2009 and the petitioner was served with second show cause notice along with the copy of the enquiry report calling for his explanation on 18.2.2009 and the petitioner submitted his explanation on 21.2.2009. 7.In the mean while, the petitioner was posted as Executive Engineer in-charge TAHDCO Tiruchy Division and pending consideration of the enquiry report by the disciplinary authority, the petitioner was as Executive Engineer in charge transferred to Tirunelveli on 21.1.2010 and the same was challenged by the petitioner in WP (MD) No..961 of 2010 and the transfer order was stayed by this court on 29.1.2010. The stay of the operation of the order was also intimated to the second respondent herein on 5.2.2010. The second respondent has on receipt of the same, passed two orders on 15.2.2010 and 16.2.2010 thereby keeping the order of transfer in abeyance and posting one Kumarasamy, Executive Engineer, TAHDCO, Villupuram Division who was originally appointed as enquiry officer in the departmental proceedings initiated against the petitioner to be in full additional charge of the Executive Engineer, Tiruchy Division. The second respondent has also on 3.3.2010 issued notice to the petitioner as if the petitioner failed to join duty as Executive Engineer, Tiruchy Division and called upon him to explain the reasons for the same. In pursuance of the same, he joined duty on 8.3.2010 at Tiruchi Division and intimated the same to the second respondent and started functioning as Executive Engineer, in-charge. While so, the second respondent has drawn the final seniority list of Assistant Executive Engineers working in TAHDCO as on 31.12.2009 and directed the copy of the same in his proc.No.ROc.A2/2029/07 dated 5.4.2010 to be served upon the individuals. The perusal of the copy of the list enclosed at page 55 and 56 of typed set of papers shows that the petitioner was shown as sl.no.7 in the seniority list of Assistant Executive Engineer as on 31.12.2009. While the petitioner was discharging his duty as Executive Engineer in charge, TAHDCO, he was served with impugned order containing the date as 28.1.2010 de-promoting him as Assistant Engineer by way of punishment for proven charges against the petitioner in the departmental proceedings initiated during 2008. 8.The impugned order is challenged by the learned counsel for the petitioner on two grounds i.e. fraud and malafide that the same is not actually passed on 28.1.2010 and should have been passed much after the filing of the writ petition against the order of transfer in Tiruneveli division and after obtaining stay of the transfer order and it is purposely anti dated with malafide intention to harass the petitioner for his having approached the High court against the order of transfer. This court finds much bonafide in the contention so raised on the side of the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 9.First of all, the impugned order dated 28.1.2010 was sent to the petitioner only on 15.3.2010. There is absolutely no reason given either in the order or in the counter affidavit filed herein for the delay in sending the impugned order. After obtaining the order of stay of the operation of the transfer order on 29.1.2010, the petitioner has communicated the same to the second respondent in writing on 29.1.2010, and even thereafter, the petitioner was not served with the impugned order of punishment. On the other hand, the second respondent in his proceedings dated 15.2.2010 and 16.2.2010 referred the petitioner as Assistant Executive Engineer and not as Assistant Engineer. It is noteworthy to mention at this juncture that the order of transfer of the petitioner was stayed by the High Court on 29.1.2010 and the same was also intimated to the second respondent on 5.2.2010. But, the second respondent has not, except keeping the order of transfer in abeyance, permitted the petitioner to join duty. Not stopping with that, the second respondent has also issued another order dated 3.3.2010 to the petitioner thereby calling for his explanations for not joining duty in Tiruchi Division as Executive Engineer in charge. 10. As already stated, the petitioner was before the order of transfer working as Executive Engineer-in charge and transferred as Executive Engineer in charge- Tirunelveli Division. When the transfer order was stayed by this court, the petitioner ought to have been permitted to join as Executive Engineer in-charge in the original place. Whereas, the second respondent has without allowing him to do so, appointed one Kumarasamy Executive Engineer, Villupuram to be in full additional in charge in existence of additional of Executive Engineer, Tirunelveli. As rightly argued by the learned counsel for the petitioner, it manifestly shows the malafide intention of the second respondent in not allowing the petitioner to discharge his duty. Even during the period between earlier order dated 16.2.2010 and later order dated 3.3.2010, the impugned order of punishment has not seen the day. Even after the petitioner intimated his joining duty as Executive Engineer in charge Tiruchy Division, the order was not served on the petitioner. All of a sudden, the petitioner was served with the impugned order after 15.3.2010. That being the manner in and the circumstances under and the period during which, the impugned order came to be passed, the same would greatly support the contention of the petitioner that it came to be passed not on the date mentioned therein but much thereafter that too after the order of transfer is stayed and it is served upon him with anti date. Though the order is passed by the quasi judicial authority, the same shall be free from arbitrariness, unfairness, bias and malafide, the combined appreciation of the facts referred to above would constraint this court to construe the impugned order as vitiated by malafide as it is purposely chosen to be passed with anti dated only with an intention to harass the petitioner for having approached the High court as contended by him. https://hcservices.ecourts.gov.in/hcservices/ 11.The next ground on which the validity of the impugned order questioned is that the same is passed without issuing second show cause notice with regard to the proposed punishment and is hence contrary to the procedure and is in violation of the principles of natural justice. The petitioner has in support of such contention produced copy of the service rules for perusal of this court. As per rules 58 (b) and 60 one of the major penalties is reduction to the lower rank or post or to a lower time scale or to a lower stage in the time scale of pay and the same can be imposed only after a show cause notice against such imposition. 12.In this case, enquiry report was submitted to the disciplinary authority on 18.2.2009 and the first show cause notice was issued on the same day on 18.2.2009 and no second show cause notice was issued for the proposed punishment of reduction in rank and the failure to do so renders the impugned order to be vitiated for violation of the service rules and principles of nature justice. 13.The learned counsel for the petitioner has also questioned the manner in which, the enquiry proceedings was completed and the enquiry report was submitted to the disciplinary authority. As already referred to, the petitioner submitted his explanation to the charge memo on 13.11.2008 and the petitioner was served with enquiry notice on 4.2.2009 for the enquiry at 11.00 am on 13.2.2009 in the office of the Executive Engineer, Villupuram and the same was adjourned to 16.2.2009 and the same was followed by enquiry report on 18.2.2009, enclosed at pages 18 to 21 of typed set of papers which is in the form of tabular statement containing three columns viz., (i) Charges (ii) Explanations of the delinquent and (iii) Report of the delinquent officer. The enquiry report was sent along with covering letter as per which, the building in question was personally inspected by 12.12.2009 in the presence of concerned Assistant Executive Engineer and Junior Engineer and the finding was rendered on the basis of sanctioned estimate agreement and spot inspection. 14.The combined reading of the enquiry report and the covering letter would reveal that the same is out come of spot visit without any opportunity given to the petitioner to put forth his case by way of oral statement. The enquiry officer has rendered his finding on the basis of the explanation given to the charge memo by the petitioner and no further enquiry as contemplated under law, for the purpose of which the enquiry officer has been appointed, is held. The enquiry report also does not reveal that the finding is based on the records referred to in the charge memo. There is absolutely no reason as to why and how the explanation given by the petitioner for the charges levelled against him are not accepted. The disciplinary officer has also not independently applied his mind to the charges, to the explanation and to the findings and not given any reason for accepting such finding and for not accepting the petitioner's further explanation. The second respondent has simply stated that the charges levelled against the petitioner are held to be proved in the enquiry report and the https://hcservices.ecourts.gov.in/hcservices/ petitioner is hence imposed punishment of reduction in rank. As rightly pointed out by the learned counsel for the petitioner, the manner in which the enquiry is held, the outcome of which is the basis for the impugned order cannot be treated as proper enquiry in the eye of law. The contention raised on the side of the petitioner that enquiry held is bad in law as it is not properly held and the finding of the enquiry officer and the final conclusions of the disciplinary proceedings are not the outcome of independent application of mind and is not supported by any valid reasons is also fortified by the following authorities cited on his side viz., (i) AIR 1964 SC 364 in Union of India v. H.C Goel (ii) 1974 II SLR Himachal Pradesh 226, in Shri Gian Singh v. The State of Himachal Pradesh through the Secretary to the Govt. of H.P. Transport Department, Simla and others (iii) 1985 (3) SCC 378 in Anil Kumar v. Presiding officer and others (iv) 2010 (3) MLJ 742 (SC) in Stage of U.P. and others v. Saroj Kumar Sinha. 15.The Hon'ble Supreme Court is in AIR 1964 SC 364 case, of the view that "the object of the enquiry is plain. It is to enable the Government to hold an investigation into the charges framed against a delinquent public servant, so that the Government can in due course consider the evidence adduced and decide whether the said charges are proved or not. The interposition of the enquiry which is held by a duly appointed enquiry officer does not alter the true legal position....it is difficult to see how the respondent is justified in contending that the findings recorded by the enquiry officer bind the appellant in the present case". .... "Some times, several charges are framed and findings are recorded by the enquiry officer in respect of them. In such cases, Government may accept some findings and may reject others, and it has naturally to proceed to take the next step in the light of its own conclusions... Dealing with the requirements which the second notice must satisfy in such a case, this court has held that the said notice must indicate to the public servant clearly the grounds on which the Government provisionally intends to act in imposing the proposed punished specified in the notice.... the respondent's case Government cannot alter the said findings. In our opinion, the contention raised by the respondent is patently unsound and must be rejected". 16.The Supreme Court has in 1985 (3) SCC 382 case, held that "where a disciplinary enquiry affects the livelihood and is likely to cast a stigma it has to be held in accordance with the principles of natural justice. The minimum expectation is that the report must be a reasoned one. The court then may not enter into the adequacy or sufficiency of evidence. But, where the evidence is annexed to an order sheet and no corelation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable". 17.In (2010) 3 MLJ 742 case it is observed by the Supreme court that "in order to establish the charges, the department is https://hcservices.ecourts.gov.in/hcservices/ required to produce the necessary evidence before the enquiry officer in order to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the department. Even in the absence of delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved..... The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. ...Non disclosure of documents having a potential to cause prejudice to a Government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant. ...The proposition of law that a government employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges is too well established to need any further reiteration....the synopsis does not satisfy the requirement of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken. The finding recorded by the Enquiry Officer is on no evidence but rather on suspicion and surmises and the same when agreed to by the disciplinary authority, illegality has been perpetuated". 18.The Himachal pradesh High court has held that "it is of the utmost importance that the mind of the Enquiry officer and the disciplinary authority should be applied with scrupulous regard to the material on record and it should be followed by a clear and definite finding. A halting and inconclusive finding serves no purpose at all. It is meaningless". 19.In my opinion the observation of the Supreme Court in the various judgments as referred to above is squarely applicable to the facts of the present case. The enquiry report is non speaking one based on which is further order which is equally non- speaking and both are thus outcome of non-application of mind on the part of the enquiry as well disciplinary authority and are held to be vitiated and legally unsustainable. Thus, for the discussion held above, the enquiry report forming part of the records relating to the impugned order and the impugned order are liable to be set aside. 20.In the result, the enquiry report dated 18.2.2009 and the impugned order dated 28.1.2010 are set aside. However liberty is given to the respondents to proceed against the petitioner by holding fresh enquiry if warranted, in accordance with the procedure after due opportunity to the petitioner for being personally heard. https://hcservices.ecourts.gov.in/hcservices/ 21.The writ petition is accordingly ordered. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rk To 1.The chairman and Principal, Secretary to the Tamil Nadu Government for Adi-Dravidar and Tribal Welfare, Secretariat, Fort St. George, Chennai-9. 2.The Managing Director, Tamil Nadu Adi Dravidar Housing and Development Corporation Limited, TNHB shopping Complex, Thirumangalam, Chennai-101. 1 cc To Mr.V.Raghavachari, Advocate, SR.82181. 1 cc To Mr.R.Subramanian, Advocate, SR.82157.. W.P.No.12325 of 2010 JRG(CO) RVL 14.12.2010 https://hcservices.ecourts.gov.in/hcservices/