IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.02.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.10390/2009 & M.P.Nos.1,2&3/2009 R.Dhanasekaran Deputy Superintendent of Police, State Human Rights Commission, Chennai – 600 028. ... Petitioner -vs- 1. State of Tamil Nadu, Represented by Principal Secretary to the Government, Home Department, Fort Saint George, Chennai – 600 009. 2. The Director General of Police, Office of the Director General of Police, Mylapore, Chennai – 600 004. ... Respondents Prayer: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records relating to the order passed by the first respondent in G.O.2 (D) No.177 dated 23.04.2009 and quash the same and to direct the respondents to issue an order of promotion as Additional Superintendent of Police with effect from June 2006 and to pay all benefits. For Petitioner :Mr.M.MD.Ibrahim Ali For Respondents :Mr.V.Manoharan for R1 & R2 O R D E R By consent the main Writ Petition itself is taken up for disposal. The prayer in the writ petition is to quash an order passed by the first respondent in G.O.2(D) No.177 dated 23.04.2009, by which an order of punishment has been passed against the petitioner directing stoppage of increment for a period of one year with cumulative effect. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner is at present working as a Deputy Superintendent of Police. While the petitioner was working as Assistant Commissioner of Police, Sembiam Range, Perambur. A charge memo dated 06.12.2006, came to be issued to the petitioner alleging that he has violated Rule 20(1) of the Government Servants Conduct Rules and received illegal gratification from a Wine Ship and allowed the sale of spurious liquor. The petitioner submitted his explanation and an enquiry officer was appointed to conduct an enquiry into the charge and the enquiry officer submitted an enquiry report holding that the charges are not proved against the petitioner. The first respondent did not accept the findings of the enquiry officer and chose to differ from the findings and issued a notice on 10.07.2008 called upon the petitioner to submit his explanation on 04.08.2008 placing several factual details. However, the first respondent by the impugned order imposed the penalty of stoppage of increment with cumulative effect for a period of one year. 3. The learned counsel appearing for the petitioner made elaborate submissions on the factual aspects and contend that the enquiry officer properly analyzed all the materials available on record and came to a conclusion that the charges are not proved. This factual finding has been reversed by the first respondent in the impugned order without assigning any reason and without considering the materials placed by the petitioner. The learned counsel would further submit even while issuing the notice dated 10.07.2008 disagreeing with the enquiry officer's report, the first respondent pre-decided the matter and subsequently without application of mind, the first respondent has passed the impugned order. Further, the learned counsel would submit that in respect of the same allegation concerning the same Wine Shop disciplinary action was taken against one Thiru.V.R.L.Simhan, Deputy Collector, who was former Taluk Exercise Officer of Purasaivakkam, Perambur Taluk, and charges were framed against the said Deputy Collector under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and charge No.1 is identical to that of the allegation made against the petitioner. The enquiry officer appointed to enquire into the charge against the said Deputy Collector submitted a report that the charges are not proved. When the matter was placed for the consideration of the Government, the Government chose to accept the findings of the enquiry officer and decided to drop the charges against the said Deputy Collector, in G.O.D.No.308 Revenue Department dated 31.05.2007. By relying upon this Government order, the learned counsel appearing for the petitioner would contend that the petitioner alone has been discriminated in the matter. The learned counsel relied upon the decision of the Hon'ble Division Bench of this Court in W.P.No.40062/2006 dated 27.04.2009 and the decisions of this Court in W.P.No.825 and 826/2007 dated 21.01.2008 in support of his contention. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned Additional Government Pleader by relying upon the counter affidavit would contend that based on an enquiry conducted by the Directorate of Vigilance and Anti-corruption on allegations of receipt of mamool the respondent department was directed by the Government by G.O.2.D No.417 Home Department dated 28.09.2005 to take departmental disciplinary action against the petitioner and three others. That apart departmental action has recommended against Mr.V.R.L.Simhan, former Taluk exercise officer and Mr.Thilagam, formerly manager, TASMAC, Ambattur. Subsequently, the charge was framed against the petitioner and the enquiry officer held that the charges were not proved. However, the findings of the enquiry officer were reviwed on valid grounds and the Government after carefully consideration of the matter has passed the impugned order. 5. The learned Additional Government Pleader would strenuously contended that there is enough material to show that the petitioner is guilty and the Government was justified in reviewing the matter and differing with the conclusion arrived at by the enquiry officer. The learned Additional Government Pleader referred to the averments in paragraph 7 to 13 of the counter affidavit. As regards the ground of discrimination raised, the learned Additional Government Pleader would submit that the question of similarly placed person in a departmental proceedings does not arise. 6. In reply, the learned counsel appearing for the petitioner submitted that all the factual allegations referred to in the counter affidavit have been denied in the reply affidavit and the punishment awarded to the other Inspectors of Police has relevance to punishment awarded to the petitioner and one Mr.Baskar, Assistant Commissioner of Police was allowed to retire and a punishment of pension cut of Rs.300 per month for one year alone was imposed. The averments contained in paragraph 7 to 13 of the counter affidavit were denied in the reply and it is submitted that the first respondent did not consider the matter in a proper prospective, which resulted in the impugned order. 7. I have considered the submissions on either side and perused the materials on record. 8. Several factual details have been placed by the petitioner, which are being converted by the respondents in the counter and which averments are refuted in the reply affidavit. This Court while exercising jurisdiction under Article 226 of the Constitution of India will not act as the appellate authority to the disciplinary authority and re-appreciate the factual material on record. Therefore, this Court is considering only the question as to whether the decision making process is fair and reasonable and as to whether the procedure adopted by the first respondent while differing from https://hcservices.ecourts.gov.in/hcservices/ the conclusion arrived at by the enquiry officer is correct and as to whether the law laid down by the Hon'ble Supreme Court on this subject has been taken note of. At this stage, it is to be noted that we are guided by the decision of the Hon'ble Supreme Court in the case of Lav Niham Vs. Chairman & MD, ITI Ltd, and another – (2006) 9 SCC 440. In the said case, the department proceedings were initiated against the delinquent, the enquiry officer exonerated him, but the disciplinary authority passed an order stating that he has provisionally concluded that the delinquent in that case is not a fit person to be retained in service and accordingly proposed to impose the penalty of removal. The delinquent therein was granted 15 days time to submit his representation against such proposal. The Hon'ble Supreme Court after considering the facts of the said case and referring to the earlier decisions of the Hon'ble Supreme Court held thus:- "11. In Punjab National Bank V. Kunj Behari Misra- (1998) 7 SCC 84 a Bench of this Court considered Regulation 7(2) of the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977. The Regulation itself did not provide for the giving of any notice before the disciplinary authority differed with the view of the enquiry officer. This Court held: "The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." 12. This view has been reiterated in Yoginath D.Bagde V.State of Maharashtra – (1999) 7 SCC 739. In this case also Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a https://hcservices.ecourts.gov.in/hcservices/ disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The Court said: "But the requirement of 'hearing' in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the 'TENTATIVE' reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with'. 13. We have already quoted the extracts from the show- cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside." Thus the legal principle which could be culled out from the above decision of the Hon'ble Supreme Court is that when disciplinary authorities differs with the view taken by enquiry officer, he is bound to do the following:- i)Give notice mentioning the tentative conclusion to the delinquent. ii)Afford an opportunity of hearing to the delinquent. iii)After hearing the delinquent before the disciplinary authority could arrive at the final finding of guilt. iv)Thereafter, the delinquent should be served with the notice relating to the proposed punishment. 9. As in the case of Lav Nigam, referred supra, in the case of the petitioner also the enquiry officer exonerated the petitioner from the charge, but the disciplinary authority chose to defer from such conclusion. However, the procedure adopted by the disciplinary https://hcservices.ecourts.gov.in/hcservices/ authority is not in accordance with the law laid down by the Hon'ble Supreme Court as referred above. The disciplinary authority has failed to comply with the conditions (ii), (iii), and (iv) as set out supra and passed the final order of punishment. Therefore, it has to be necessarily held that the procedure adopted by the disciplinary authority is not in consonance with the law laid down by the Hon'ble Supreme Court. 10. Further, it is to be noted that no reasons have been assigned by the first respondent while passing the impugned order except for the observations in paragraph 3 at page 9 of the impugned order. The previous paragraphs related to the entire disciplinary proceedings, which were initiated against the petitioner. In the instant case, the first respondent chose to differ from the findings of the enquiry officer and while doing so it is incumbent upon the first respondent to support its provisional conclusion with reasons and also setting out as to how the objections given by the petitioner to the notice dated 10.07.2008 are not tenable. However, it is seen that no such reasons have been assigned and the order of punishment has been imposed. Therefore, on this ground also the impugned order is liable to be set aside. 11. In such view of the matter, I am inclined to pass the following order:- The writ petition is allowed and the impugned order is set aside and the matter is remanded for fresh consideration for the first respondent. The petitioner shall treat the proceedings of the first respondent dated 10.07.2008 in letter No.SC/6317-09-2007 as a show cause notice setting out the tentative conclusion of the disciplinary authority for differing from the finding of the enquiry officer. The petitioner is entitled to submit his objections to the tentative conclusion within a period of two weeks from the date of receipt of a copy of this order. On receipt of the reply, the first respondent shall consider the same and pass orders on merits and in accordance with law within a period of eight weeks thereafter. While doing so the first respondent shall also take into consideration the plea of discrimination raised by the petitioner by relying upon G.O.D.No.308, Revenue Department dated 31.05.2007 exonerated the Thiru.V.R.L.Simhan, formerly Taluk Exercise Officer from the charges in respect of the same allegation against the petitioner. 12. With these observations the writ petition is allowed on the above terms. Connected miscellaneous petitions are closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. pbn https://hcservices.ecourts.gov.in/hcservices/ https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Secretary to the Government, State of Tamil Nadu, Home Department, Fort Saint George, Chennai – 600 009. 2. The Director General of Police, Office of the Director General of Police, Mylapore, Chennai – 600 004. + 1 cc to M/S.M.MD.Ibrahim ali, Advocate, SR 11359 Order in W.P.No.10390/2009 CSI (CO) RH (24.2.10) https://hcservices.ecourts.gov.in/hcservices/