IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 02..01..2008 Coram The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W.P. No. 46206 of 2002 and W.M.P. No. 67265 of 2002 1. The Secretary to Government Government of Tamil Nadu Municipal Administration and Water Supply Department Fort St. George, Chennai – 9 2. The Commissioner of Municipal Administration Chepauk, Chennai ... Petitioners -vs- 1. P. Nagasubramanian 2. The Registrar Tamil Nadu Administrative Tribunal Chennai ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari to call for the records pertaining to the order dated 01.7.2002 made in O.A. No. 3428 of 1999 on the file of the Tribunal and quash the same. For Petitioners : Mr. M. Dhandapani, Spl. GP For Respondent 1 : Mr. AR.L. Sundaresan, SC for Ms. AL. Gandhimathi https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by K.CHANDRU, J.) Heard the arguments of Mr. M. Dhandapani, learned Special Government Pleader representing the petitioner and Mr. AR. L. Sundaresan, learned Senior Counsel leading Ms. AL.Gandhimathi, learned counsel for the respondent and have perused the records. 2. The State Government is the petitioner in the present writ petition. Aggrieved by the order dated 01.7.2002 passed by the Tamil Nadu Administrative Tribunal in O.A. No. 3428 of 1999, the present writ petition has been filed. 3. The first respondent was formerly a Municipal Engineer in the Manaparai Municipality. He filed O.A. No. 3428 of 1999 before the Tamil Nadu Administrative Tribunal challenging the order dated 23.7.1998 wherein and by which he was removed from service by the Commissioner for Municipal Administration. As against the said order, the first respondent filed an appeal before the Government and the same was also rejected by the Government vide G.O. (D) No. 127 Municipal Administration and Water Supply Department dated 25.3.1999. As against this order, the petitioner had preferred the Original Application. 4. The Tribunal held that when the disciplinary authority disagrees with the findings of the Enquiry Officer with reference to any charge, he ought to have given notice to the charge-sheeted employee and only after hearing, he can take a different view and award the punishment. The said view taken by the Supreme Court in the Punjab National Bank and others v. Kunj Behari Mishra [1998 (7) SCC 84] and the same was followed by the Tribunal. The Tribunal found that two other persons were responsible for all the irregularities and while the note was put up by one Jawahar, it was endorsed by one other Accountant, by name, Sikkannan, and since the said Jawahar has been let off and the charge memo issued to the said Sikkannan has been set aside by the Tribunal in O.A. No. 3636 of 1999 vide order dated 12.02.2001. The Tribunal held that the first respondent was 51 years old and he had suffered mental agony and, therefore, he must be granted relief as was given in the case of Jawahar and Sikkannan and allowed the O.A. and further direction was given to give 50% of the arrears of salary for the period of absence but for other purposes, the said period should be counted. It is against this order, the present writ petition has been filed. https://hcservices.ecourts.gov.in/hcservices/ 5. The approach of the Tribunal was not proper. If for some reason, the Tribunal held that the enquiry conducted against the first respondent was vitiated on account of either principles of natural justice or infraction of any rule, it should have remanded the matter for fresh consideration. In fact, since the Tribunal heavily relied upon the order passed by the Tribunal in the case of Sikkannan in O.A. No. 3636 of 1999, disposed on 12.02.2001, we have asked the learned Special Government Pleader about the fate of the Original Application for which he stated that the said matter was challenged by the State in W.P. No. 6960 of 2002 and the same was partly allowed by a Division Bench of this Court vide order dated 01.4.2004. He also circulated a copy of the said order. The Division Bench of this Court in paragraphs 11 to 14 held as follows: Para 11: "We have also gone through the seven charges levelled against the first respondent. The charges would indicate that there are serious allegations against the first respondent with reference to the creation of records and sending false report with respect to the appointment of workers and promotion of the employees. Therefore, we are of the view that the order of the Tribunal is to be set aside and the matter has to be remitted back to the disciplinary authority. Para 12: It is contended by learned counsel for the first respondent that some of the documents asked for have not been furnished. However, learned counsel for the first respondent is not able to show any prejudice over the non-supply of those documents to the first respondent, especially when it has not been established before this Court that those documents would be relevant for deciding the issue. Para 13: Of course, in this case, though notice was issued by the Department, it was only with reference to the imposition of penalty and not the communication with reference to the reasons for disagreement in respect of some charges, which according to the enquiry officer, have not been proved and as such, the order of removal from service, without giving such an opportunity, is liable to be set aside. Therefore, it will be appropriate to remit the matter back to the disciplinary authority as the entire enquiry before the enquiry officer is over and the only https://hcservices.ecourts.gov.in/hcservices/ irregularity committed by the disciplinary authority is that the reasons for disagreement have not been communicated to the first respondent and as such, the process of the finalising the issue is at the fag end. Para 14: For the foregoing reasonings, the order of the Tribunal is set aside and the matter is remitted back to the disciplinary authority and the disciplinary authority shall continue the enquiry from the stage of furnishing the dissenting tentative reasons for disagreeing with the enquiry officer with regard to some of the charges that the authority has disagreed. The enquiry shall be completed within six months from the date of receipt of a copy of this order. The writ petition is allowed accordingly. No costs." Therefore, the Tribunal ought to have remanded the matter to the Department from where the irregularity has crept in. 6. We are in entire agreement with the order passed by the Division Bench in the case relating to Sikkannan and in the light of the same, we set aside the order of the Tribunal dated 01.7.2002 in O.A. No. 3428 of 1999 and remit the matter to the Disciplinary authority and also direct the disciplinary authority to continue the enquiry from the stage of furnishing the dissenting note put up by him with regard to the finding of the Enquiry Officer and thereafter, to complete the enquiry within a period of three months from the date of receipt of a copy of this order. 7. This writ petition is allowed to the extent indicated above. However, there will be no order as to costs. Connected Miscellaneous Petition is closed. Gri Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government Government of Tamil Nadu Municipal Administration and Water Supply Department Fort St. George, Chennai – 9 2. The Commissioner of Municipal Administration Chepauk, Chennai 5. 3. The Registrar Tamil Nadu Administrative Tribunal Chennai 104. + 1 cc to Mr. A. L. Ganthimathi, Advocate SR No. 190 W.P.No. 46206 of 2002 CMP(CO) SR/10.3.2008 https://hcservices.ecourts.gov.in/hcservices/