IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.23811 of 2009 and M.P.No.1 of 2009 N.Kanniappan ..Petitioner Vs 1.The Commissioner, Corporation of Chennai, Rippon Building, Chennai – 600 003. 2.The Assistant Commissioner, Zone VI, Corporation of Chennai, Chennai – 600 005. ..Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records of the Respondents especially the second respondent relating to his proceedings (charge memo) made in Me.Aa6.Na.Ka.No.Aa4/2658/2006 dt.12.07.06 and quash the same as null and void and invalid and consequently directing the respondents to refix the petitioner's scale of pay including all increments from 1996 stopped pursuant to the issuance of suspension order dt.23.06.06 and pay the full and eligible pay scale entitled to by the petitioner with all allowances besides calculating his pensionary benenfits based on the same and disbursing the difference in the pay scale after regulating the suspension periods from 23.06.2006 to 08.05.2007 as duty periods for all purposes apart from disbursing the arrears of increments commencing from 1996 together with interest at the rate of 18% per annum. For Petitioner : Mr.A.Amalraj For Respondents : Mr.V.Bharathidasan O R D E R Heard both sides. 2. The petitioner was working as Wireman Grade-II. He has come forward to file the present writ petition seeking to challenge the https://hcservices.ecourts.gov.in/hcservices/ order dated 12.07.2006. By the said order, the petitioner was informed that he was suspended from service in public interest with effect from 23.06.2006. Thereafter, a charge memo was issued under Rule 9(2) of the Chennai Corporation Employees Third and Fourth Grade Service (Disciplinary and Appeal) Rules. 3. The charges against the petitioner were: i)reprehensible conduct of acting on his own, leaving the work spot without any prior permission and without discharging the duty assigned at Division -89 of Theradi Street on 15.06.2006; ii)caused inconvenience by not attending to duty on 15.06.2006 for the maintenance and repairing of electric lights; iii)removed the sheet from the Attendance Register wherein an endorsement was made as 'not present' against the delinquent's name. iv)reprehensible conduct of showing irresponsibility, non- dedication and lethargic attitude in discharging the official duty without complying with the instructions of the superiors. 4. The petitioner was asked to give his explanation within 15 days. It is this show cause notice, the petitioner has come forward to challenge in this writ petition. 5. Mr.V.Bharathidasan, learned Standing Counsel for the Corporation was directed to take notice. Despite taking notice on this writ petition, the respondents have not filed any counter affidavit. On the contrary, the learned Standing Counsel appearing for the respondent-Corporation produced the original file and circulated the same for perusal by this Court. 6. It was claimed by the petitioner that the charges framed against him were false. It was stated that the Junior Engineer had created problem for him and he had made a complaint against the Junior Engineer one Parthasarathy to initiate appropriate action against him. With reference to the same incident that took place on 15.06.2006, there were allegations of ill-treatment, favouritism, non-sanctioning of salary after extracting work against the said Junior Engineer. The Junior Engineer kept the Attendance Register in his room and made the petitioner as a scapegoat. It was also stated that the petitioner was subsequently reinstated in service on 08.05.2007 without prejudice to the pending disciplinary proceedings. 7. He also stated that even earlier in respect of the very same charge, an enquiry was held and his oral evidence was also recorded on 30.11.2006. He was not cross-examined by the Corporation and the said enquiry was posted for further evidence on his side on 07.12.2006. On 07.12.2006, the Enquiry Officer examined the https://hcservices.ecourts.gov.in/hcservices/ witnesses M/s.Gunasekaran, Ravichandran Balayogi and the Junior Engineer. Thereafter, it was stated that the Enquiry Officer had submitted his findings to the second respondent. When the enquiry had already taken place in December 2006, there is no question of framing another charge memo in respect of the same incident and asking the petitioner to give his further explanation. It is in that view of the matter he has chosen to file the present writ petition. He also stated that if the present charge memo is taken into account, then it related to an old period and on grounds of delay also, the charge memo should be interfered with. 8. The petitioner in support of his contention had produced a copy of the Minutes of the enquiry proceedings conducted by Advocate Surya Narayanan on 30.11.2006. It is seen that after considering the charge memo, the evidence of the Junior Engineer Parthasarathy was recorded. For the purpose of petitioner's evidence it was posted on 07.12.2006. It was thereafter the petitioner was restored to service by the order of the Commissioner dated 23.03.2007 and communicated by the Assistant Commissioner Zone VI vide proceedings dated 08.05.2007. In the subjection portion of the said proceedings, it was shown that the enquiry proceedings were initiated, Enquiry Officer appointed, enquiry conducted but no enquiry report obtained from the Enquiry Officer and therefore, the petitioner was restored to service. 9. A perusal of the original file produced by the respondent corporation shows that an Advocate by name D.Suryanarayanan was appointed as an Enquiry Officer. He had summoned the witnesses but there was no records relating to the enquiry conducted by him. On the contrary by proceedings dated 06.01.2010, a note was put up by the Assistant Commissioner that the Enquiry Officer though completed the enquiry did not send the enquiry report. In the mean while, the petitioner had approached this court with the present writ petition. It was also stated that the Electrical Assistant did not entrust the file to anybody else and hence, there was a delay in taking further action in the matter. 10. It is also seen from the proceedings of the Commissioner of Corporation dated 14.10.2008 that for conducting enquiry henceforth outsiders need not be appointed. Further the previous proceedings in preparing a list of retired officers of the Labour Department and Advocates for conducting enquiries can be cancelled in the light of the Corporation's Council Resolution dated 30.09.2008. In future, in respect of Class III and Class IV employees, the Head of the Departments can conduct enquiries after getting orders from the Commissioner. If any other proceedings were pending with those Enquiry Officers, it was directed that such enquiry should be completed within 31.10.2008 and it should be sent to the Public Department. https://hcservices.ecourts.gov.in/hcservices/ 11. The note put up by the legal cell also shows in paragraphs 6 and 7 that the Enquiry Officer had conducted the enquiry on 30.11.2006 and 07.12.2006 and he was yet to furnish his report and the system of outsiders to conduct enquiry was cancelled. This stand of the respondents cannot be accepted because the petitioner in his typed set of papers had produced the Minutes of the enquiry proceedings. Therefore, his contention that only because the Enquiry officer had found him innocent, he was restored to service merits acceptance. 12. Normally, this Court is not expected to interfere with a charge memo. But when an enquiry is ordered to be conducted by an Enquiry Officer and that Enquiry Officer had given the report, the respondents cannot conduct a de novo enquiry in respect of the very same charges. 13. The supreme Court vide its judgment in K.R.Deb v. The Collector of Central Excise reported in (1971) 2 SCC 102 in paragraphs 12 and 13 held as follows: "12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. 13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant." 14. If enquiry report is already available, there is no impediment for the respondents to proceed in accordance with law on the basis of the said report. The initiation of fresh charge memo against the petitioner is misconceived and not warranted. Such a course of action is not contemplated in the light of the decision of the Supreme Court referred to above. https://hcservices.ecourts.gov.in/hcservices/ 15. Hence, the writ petition stands allowed to the extent indicated above. The impugned charge memo dated 12.07.2006 stands set aside. No costs. Consequently, connected miscellaneous petition is closed. For the consequential relief the petitioner must make appropriate representation to the authorities. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1.The Commissioner, Corporation of Chennai, Rippon Building, Chennai – 600 003. 2.The Assistant Commissioner, Zone VI, Corporation of Chennai, Chennai – 600 005. + 1 c.c. to Mr. A. Amalraj, Advocate. S.R.No.10696. + 1 c.c. to Mr. V. Bharathidasan, Advocate. S.R.No.11557. W.P.No.23811 of 2009 GS (CO) GSK 24.02.2010. https://hcservices.ecourts.gov.in/hcservices/