IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 23-02-2010 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.11356 of 2006 R.Manoharan .. Petitioner vs. Principal District Judge Cuddalore .. Respondent Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.M.Kalyanasundarm for Mr.G.Sethuraman For Respondent : Mrs.Malarvizhi Udayakumar, Spl.G.P. O R D E R M.VENUGOPAL,J. The petitioner has filed this writ petition praying for issuance of a writ of certiorarified mandamus, to call for the records of the respondent/Disciplinary authority relating to the order in A.No.303 (D.No.6496/02) dated 26.12.2005 and to quash the same and further to issue necessary directions that the petitioner be paid the salary borne on the Selection Grade Examiner Post together with the salary amounts withheld pursuant to the order together with continuity of service with all the attendant benefits. 2.The petitioner, with a qualification of B.A.Degree, joined the Judicial Ministerial Service as Examiner of copies on 11.3.82 . He was awarded with the Selection Grade in the pay scale of Rs.4000-100-600 with effect from 11.3.1982 and thereafter the Special Grade in the time scale of pay of Rs.4300-100-6000 with effect from 11.3.2002. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner was working as Examiner in the Judicial Magistrate's Court,NO.II, Chidambaram. One M.Durai was working in the office of the Judicial Magistrate's Court NO.II, Chidambaram from the year 2001 to 2004. The said Durai, Magisterial Clerk of the Judicial Magistrate's Court No.II, Chidambaram applied for leave on 11.3.2004 and 12.3.2004 and hence, the petitioner was required to officiate as Magisterial Clerk on 11.3.2004 and 12.3.2004 for two days in Judicial Magistrate's Court, NO.11, Chidambaram presided over by the learned Judicial Magistrate Mr. M.P. Subramaniam. On 11.3.2004, there were 99 cases in Judicial Magistrate's Court NO.II, Chidambaram as per "A" Diary. The entire case record in C.C.No.132/98, which was posted to 16.3.2004 from 4.3.2004 was not available. On 18.3.2004, Thiru P.C.Gopinath joined as Judicial Magistrate No.II, and enquired Durai, the Magisterial Clerk in regard to the missing of record in C.C.No.132/98 and directed him to trace the file or to prefer a complaint. Thereupon, the said Durai, Magisterial Clerk of Judicial Magistrate Court No.II, Chidambaram preferred a complaint to the learned Judicial Magistrate on 30.3.2004 stating that on 15.3.2004, he complained to the Judicial Magistrate that C.C.No.132/1998 was missing. Memos were issued by the learned Judicial Magistrate No.II, Chidambaram, requiring Durai- P.W.1, Sampath-P.W.2, Kamaraj- P.W.3, to explain as to how the records were missing and they submitted their explanations. P.W.2 Sampath (Office Assistant) in his explanation stated that on 11.3.2004, the officiating Magisterial Clerk viz., the petitioner herein asked him to bring the bundle of C.C.No.132/1998 and therefore he brought the said bundle and that the learned Judicial Magistrate Mr.M.P.Subramaniam asked as to why the bundle was brought to the Court and he explained that the petitioner asked for the same to check the entries in the "A" Diary with "B" Diary and the Judicial Magistrate handed over the said bundle to the petitioner and therefore, the petitioner was responsible for the records and accordingly, the responsibility for the missing of entire records in C.C.No.132/98 was fixed on him. 4. M.Durai, the Assistant of Judicial Magistrate No.II, Chidambaram in his complaint dated 30.3.2004 addressed to the Judicial Magistrate NO.II, Chidambaram had stated that in C.C.No.132/98, on 4.3.2004, the accused were questioned under Section 313 (1) Cr.P.C. and was posted for examination of Defence witness on 16.3.2004 and the learned Judicial Magistrate No.II, directed him to keep the case bundle C.C.No.132/98 in his special room and accordingly, he kept the said bundle and the said bundle was there in the special room of the Magistrate, when the files were brought before the Court and on 11.3.2004 and 12.3.2004, he was on leave and on 15.3.2004, when he returned to duty and when he took the other bundles from the special room of the learned Judicial Magistrate for the particular date of hearing, then he https://hcservices.ecourts.gov.in/hcservices/ found that the bundle in C.C.No.132/98 was missing and immediately informed the learned Judicial Magistrate, who in turn, directed him to search for the same and even though he searched for the bundle on that day, it was not traceable and therefore he brought it to the knowledge of the learned Judicial Magistrate for taking appropriate action in the matter. 5. The learned Judicial Magistrate No.II, Chidambaram by his proceedings dated 23.9.2004 had issued a charge proceedings to the petitioner herein stating that while acting as a Bench Clerk on 11.3.2004 during the leave of regular Bench Clerk, he was entrusted with the custody of the records in C.C.No.132/98 and he had asked for the said bundle brought from the chamber of the learned Judicial Magistrate by the then Office Assistant G.Sampath and since he had not properly explained the whereabouts of the records, there was gross dereliction of duty on his part for not having restored the record safely to the chambers of the Judicial Magistrate and thus responsible for the loss of record in C.C.No.132/98 and he was called upon to submit his written statement of defence within three weeks from the date of receipt of the charge memo as to why he should not be dealt with under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules 1955 . 6. The Chief Judicial Magistrate, Cuddalore in proceedings A1/56-2004 dated 24.2.2005 had appointed Thiru R.Sampath, District Munsif-Cum-Judicial Magistrate, Portonovo, as an Enquiry Officer in respect of the matter pertaining to the petitioner and he was directed to proceed with the enquiry from the stage where it was left behind by the learned Judicial Magistrate No.II, Chidambaram and submit his findings within three months from the date of receipt of the enquiry file. 7. The learned District Munsif-cum-Judicial Magistrate, Parangipettai, after examining P.Ws 1 to 3 and marking exhibits P1 to P8 and also examining D.Ws 1 to 4 and marking Exs.D1 to D19, in his enquiry report dated 10.10.2005 came to the conclusion that the charge framed against the petitioner under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal Rules 1955 was clearly proved based on the evidence of P.W.2, G.Sampath, Office Assistant when the case bundle C.C.NO.132/98 was entrusted to him on 11.3.2004, when he officiated as the Magisterial Clerk in the leave vacancy of regular Magisterial Clerk Durai (Complainant) and submitted his report to the Disciplinary Authority viz., the Principal District Judge, Cuddalore District, Cuddalore. 8. The learned Disciplinary authority/Principal District Judge,Cuddalore by his proceeding dated 20.10.2005 informed the Enquiry Officer that the enquiry would not complete without securing the evidence of Mr.M.P.Subramaniam, who was the then https://hcservices.ecourts.gov.in/hcservices/ Judicial Magistrate No.II, at the relevant point of time up to 16.3.2004. 9.The learned Judicial Magistrate No.II, Chidamabaram by means of his letter dated 24.6.2004 in D.No.871/04 addressed to Mr.M.P.Subramaniam, learned Second Additional Subordinate Judge, Nagercoil, at Kanyakumari District, had stated that the learned Chief Judicial Magistrate,Cuddalore as per his proceeding in A1/56/2004 dated 16.6.2004 had directed him to obtain his remarks as to whether the bundle was taken out from his chamber on 11.3.2004 as mentioned by the Office Assistant G.Sampath and hence requested the learned Second Additional Subordinate Judge, Nagercoil to give his specific and detailed remarks on the loss of the bundle at the earliest so as to enable him to fix the responsibility of the concerned staff as required by the learned Chief Judicial Magistrate, Cuddalore. 10. The learned Second Additional Subordinate Judge,Nagercoil, Kanyakumari District, by his reply dated 29.6.2004, addressed to the Judicial Magistrate NO.II, Chidambaram had, among other things, stated that it was true that on 11.3.2004 the examiner of that Court R.Manoharam (writ petitioner) was in charge of the post of Magisterial Clerk and subject to his remembrance though the said case was not posted to 11.3.2004, when he was in dais without his permission and knowledge, the Office Assistant, G.Sampath went inside his chamber and brought the bundle and handed it over to the examiner R.Manoharan (petitioner herein) in his presence and when he enquired about it, the petitioner informed him that "A' diary to be compared with that of "B" diary and then he left the matter with a direction to restore the case in his chamber etc., 11. The Enquiry Officer (District Munsif-cum-Judicial Magistrate, Portonovo) after examining Mr.M.P.Subramaniam as P.W.4 and taking into consideration the available material evidence on record, came to the conclusion that the charge against the petitioner was not proved under Section 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules 1955 and submitted the Enquiry Report dated 16.11.2005 to the Disciplinary Authority viz., The Principal District Judge, Cuddalore. 12. The respondent/Principal District Judge/Disciplinary Authority by means of his proceedings dated 24.11.2005, on a careful consideration of the Enquiry Report of the District Munsif- cum-Judicial Magistrate, Portonovo dated 16.12.2005 disagreed with the findings of the Enquiry Officer insofar as it related to the charge, for the reasons mentioned in the annexure to his proceedings and held that the charge against the petitioner/delinquent was proved and the petitioner/delinquent was given an opportunity to make further representation on the findings of the charges and after perusing the representation dated https://hcservices.ecourts.gov.in/hcservices/ 7.12.2005 submitted by the petitioner,came to the conclusion that there was no reason to change the views expressed in his communication dated 24.11.2005 and accordingly found the petitioner/delinquent guilty of charges levelled against him. 13. The Disciplinary Authority viz., the Principal District Judge, Cuddalore, in his final order in A.No.303 dated 26.12.2005 by taking a different view than that of the Enquiry Officer came to the conclusion that he saw no reason to change his views expressed in the communication dated 24.11.2005 as per annexure under Rule 17 (b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules 1955 and accordingly held that the charge against the petitioner was proved and considering the charge, imposed a punishment of reducing the petitioner from the grade of Selection Grade Examiner of Copies to the stage in the ordinary scale and relegated him to the ordinary time scale of pay of Rs.3200-85-4900. 14. In the final order dated 26.12.2005, the respondent/ Disciplinary Authority in paragraphs 6 and 7 was pleased to observe as follows: " However, quite antithetical to what he discussed and held in the enquiry report dated 10.10.2005, in the subsequent enquiry report dated 16.11.2005, the enquiry officer discussed and held as follows: "Translated English version: P.W.1 Durai in his evidence stated while P.W.4 M.P.Subramaniam was working as Judicial Magistrate-II, Chidambaram after the examination of the Government side witnesses the cases to be posted for evidence of the accused, MC would keep the case files in Judicial Magistrate -II Chamber. P.W.4 M.P.Subramaniam has accepted this in his reply letter Ex.P.8. Further in his evidence, generally, if a case reaches the stage of examination of the accused witnesses, he has instructed to keep the case files in his chamber so that he can examine the file and also for dictating to the steno for pronouncing judgment and on that basis CC 132/98 file was kept in his chamber. So on 11.3.2004 CC.No.132/98 file was kept in Judicial Magistrate-II's chamber for his examination becomes evident from the evidence of P.W.1 Durai, P.W.2Sampath and P.W.4 Judicial Magistrate No.II, M.P.Subramaniam. On 11.3.2004 CC 132/98 was not posted. On 4.3.2004 after questioning the accused under Section 313 Cr.P.C. they denied the charge and said that they have witness on their side. It is clear from Ex R.1 that case was listed to 16.3.2004 for evidence of the accused. On 11.3.2004, the case file C.C.132/98 was not among the cases entrusted to the charged Manoharan, C.C.No.132/98 was in JM-II's chamber P.W.2 Sampath in his evidence stated that the proceedings in the Court started at 10.30. a.m, after calling work was over, charged Manoharan asked him to go to JM-II chamber and bring the CC 132/98 case file accordingly he brought the CC 132/98 case file from JM II chamber and gave it to Manoharan and at that time JM II https://hcservices.ecourts.gov.in/hcservices/ asked him the case is not posted on that date and why I brought it, for that Manoharan told JM II that he only asked him to bring the file, then Manoharan gave the file to JM-II but he said that the case is not posted on that date and so he gave it back to Manoharan. M.P.Subramaniam who was enquired as P.W.4 in his evidence stated while he was in the court case, trial was going on and P.W.2 Sampath OA on his own, went inside his chamber and brought the case file CC.132/98 to the court and gave it to Manoharan who was working as MC and when asked it is not posted on that date, he said that it has to be compared with A diary and B diary and afterwards the case file was missing. He also said that he did not see Sampath keeping the file back in his chamber. But P.W.4 JM-II in his evidence did not say as P.W.2 Sampath stated, that the charged Manoharan neither told him that he only asked Sampath to bring the file, nor after seeking the file he gave it to Manoharan. When CC 132/98 file was missing, on 11.3.2004 it was not posted for hearing on that date. But P.W.2 Sampath stated that on 11.3.2004 he saw all the accused in CC 132/98 came to the court and Gopalakrishnan the advocate who appear for the accused also came to the court and that JM II called the advocate and the accused person to the Court and before that the counsel told JM II that all the accused in the case have come to the Court and afterwards JM II asked him to call them and so he called them to the court and afterwards he has gone to the office and when he returned the accused persons were not present. But JM II M.P.Subramaniam has not stated this information in his evidence. These are not ordinary details. If such incident has happened M.P.Subramaniam would have definitely stated this in his evidence. Not only that, defence witness DW.4 advocate Gopalakrishnan in his evidence stated that the accused persons in the case CC 132/98 did not come to the court on 11.3.2004, as the case was not posted on that date, but came to the court only 16.3.2004 to which date it was posted. So the evidence of P.W.2 has become doubtful. Further P.W.2 evidence is not confirmed by the evidence of P.W.4. Copy writer in that Court K.Sivakumar D.W.3 in his evidence stated that no such incident as stated by P.W2, Sampath happened in the court.D.W.3 Sivakumar will be sitting in the corner of the court hall. Though he may not aware of what happens close to the dais of the Judge, there is every chance for him to know the incident if all the accused persons and the advocate were present in the court. JM-II M.P.Subramaniam's evidence is not complete. Under these circumstances the evidence of P.Ws 1,3 & 4 has caused doubt whether the charged person would have committed that offence. Further as per letter Ex.P7 was sent to M.P.Subramaniam asking him to give his explanation regarding the missing of CC 132/98 file. On examining the Ex.7 Xerox copies of the explanation given by 2 OAs were sent along with that letter. Under the circumstances there is every chance for Ex P8 to have been based on the explanation Ex P5 given by P.W.2. https://hcservices.ecourts.gov.in/hcservices/ The Enquiry Officer on his finding that P.W.4 reiterated in his deposition what he stated in Ex P8 should have held that the charge as against the charged Official was proved. But instead of holding like that, in the enquiry report dated 16.11.2005, he dilated on unimportant matters and held as though the charge was not proved as against the charged official." and also made a reference to the enquiry officer's first report dated 10.10.2005 discussing at length as to how the evidence of P.W.2 had no reason to implicate the charged official and after extracting the excerpting from the enquiry report dated 10.10.2005 was of the view that the finding of the enquiry officer that the charge against the delinquent official was a totally unreasonable and against the deposition recorded by him and further observed that the cumulative effect of evidence available would clearly proved that P.W.4 , the Magistrate who was in the habit of asking the Magisterial Clerk to place the case bundle once the examination under Section 313 Cr.P.C. was over in his chamber so as to enable him to prepare the Judgments upto the factual portion of is and that after hearing the arguments he would complete the discussion and reasoning part of the Judgment and P.W.1's specific spoke about that fact and more over, P.W.2 G.Sampath(Office Assistant) categorically mentioned that it was the charged official on 11.3.2004 who asked him to bring the case bundle CC 132/98 from the chamber of the Magistrate P.W.4 and that P.W.2 handed over it to the charged official and also that the remarks of P.W.4 M.P.Subramaniam in Ex P8 as well as in his evidence specifically referred to the fact that when he was in the dais without his permission P.W.2 G. Sampath(Office Assistant) went inside his chamber and brought the case bundle CC.132/98 and handed it over to the petitioner/charged official in the presence of P.W.4, the Magistrate and when he enquired about it, the petitioner/charged official informed P.W.4 that "A" diary had to be compared with "B" diary thereupon P.W.4 left the matter with a direction to restore the case back in his chamber and therefore, without furnishing any valid reason, the enquiry officer in his enquiry report dated 16.11.2005 simply held as though the charged official was not responsible for the charge, it is not known as to what valid reason the enquiry officer had to disbelieve the version of the Judicial Officer(P.W.4) who specifically stated that he saw the charged official handling that bundle and P.W.4 also narrated the circumstances also under which he has constrained to question about it to the charged official R.Manoharan and if in Departmental Proceedings, the version of the Judicial Officer, like P.W.4 has to be rejected, then he is at a loss to understand as to how any court can function in a decent manner by creating confidence in the mind of the public and the enquiry officer who is also a Judicial Officer has miserably forgotten one important fact that if his own statement like the one on par with P.W.4 was rejected and liability was fixed on him for the missing of the case bundle, then what would be his position and as such, unmindful of the consequences and throwing to winds all norms of legal https://hcservices.ecourts.gov.in/hcservices/ principles and also preponderance of probabilities which were expected to be followed in disciplinary matters the enquiry officer went to the extent of simply ignoring the version of P.W.4 the Judicial Officer who had personal knowledge about the matter etc and more over, the enquiry officer wrongly in his enquiry report dated 16.11.2005 in paragraph 19 had discussed about facts which are contrary to normal conduct of staff in Court Office and also that the enquiry officer had brushed aside the evidence of D.W.4 in his previous enquiry report and as such the disciplinary authority/respondent disagreed with the findings of the enquiry officer and found the charged official guilty of the charge. 15. It is not out of place for us to make a mention that an Appellate Authority is required to take into account (1) whether the procedure laid down in Rules was complied with and if not, whether such non compliance had resulted in violation of any provisions of Constitution or Rules or in violation of Natural Justice?(2) Whether the findings of the Departmental proceedings were warranted by evidence on record(3) Whether penalty imposed was an adequate one and thereupon pass orders confirming, enhancing etc, the penalty or may remit back the case to the authority which imposed the same. 16. Moreover, it is a well settled principle in law that an Appellate order must be a speaking order showing clearly how an appeal was considered and if the authority after going through the records of the case, was satisfied that (1) the Charge Officer was given due opportunity (2) the order of Disciplinary Authority was based on materials on record (3) that the punishment was just, proper and not disproportionate, he may uphold the order as such. 17. Indeed, the appellate order was to meet two tests(a) He has power to modify or confirm the penalty and(b) he has also the power to enhance the penalty. In relevant cases when the Appellate Authority finds that there has been gross irregularities committed either by the Enquiry Officer or the Disciplinary Authority, he may order even further enquiry. As Justice can only be ensured at the appellate stage, it is necessary that the order of the Appellate Authority shall meet the requirements of 'consideration' of the appeal, as per the decision in R.P. Bhatt-v-Union of India and others 1986 (2)SCC, 651. In addition, the appellate order must be a reasoned one as per the decision in Ramchander-v- Union of India and others 1986 (3) SCC 103. In short,the reasons are the links between the materials on which certain questions are raised and the actual conclusions arrived at as per decision of the Apex Court in Union of India-v- M.L.Capoor AIR 1974 SCC 87. 18. In the instant case, it is the evidence of P.W.1-Durai, now working as Assistant, Additional District Magistrate's Court, Chidambaram (formerly Assistant/Magisterial Clerk in Judicial https://hcservices.ecourts.gov.in/hcservices/ Magistrate No.2, Chidambaram) that he was on leave on 11.3.2004 and 12.3.2004 and that he resumed his duty on Monday viz., on 15.3.2004, he went to the chambers of the Judicial Magistrate to find out whether any case file pertaining to that day, was kept among the files already kept and he found that C.C.No.132/98 which was kept in the chamber was not there and at 10.00 a.m., when the Judicial Magistrate-P.W.4 came to the Court, he informed him that the case file C.C.No.132/98 was not there and later on 16.3.2004, he searched for the file in C.C.No.132/98, but had not found the case file and even on 30.3.2004, he could not find out the case bundle C.C.No.132/98 inspite of search and he informed P.W.4 in writing about the missing of file C.C.No.132/98. 19. It is the evidence of P.W.2-G. Sampath (Office Assistant in Additional District Magistrate's Court, Chidambaram, formerly in Judicial Magistrate No.II,Chidambaram) that on 11.3.2004, he worked in the Judicial Magistrate NO.II, Chidambaram and in the said Court, the petitioner was in charge of Magisterial Clerk for calling cases, since P.W.1 Durai was on leave and after calling cases were over, the petitioner/delinquent told him to bring the case file C.C.No.132/98 from P.W.4's chamber and he went to P.W.4's chamber and gave C.C.No.132/98 to the petitioner/delinquent and P.W.4 asked him as to why he brought C.C.No.132/98 case filed, when it was not posted on that day and for that the delinquent informed P.W.4/Judicial Magistrate that he only asked him to bring the case file and handed over it to P.W.4 and P.W.4 informed that the case was not posted for enquiry on 11.3.2004 and then gave it back to the petitioner/delinquent. 20.P.W.3 K.Kamaraj's (Office Assistant of Judicial Magistrate NO.II, Chidambaram) evidence is to the effect that P.W.2 Sampath brought the case file C.C.No.132/98 and gave it to the petitioner/delinquent and he had no direct knowledge or connection with the missing file and came to know only when P.W2 Sampath informed him about it. 21. The evidence of P.W.4 is to the effect that on 11.3.2004, while case proceedings were going on in the District Munsif- Judicial Magistrate Court at Parangipettai, P.W2 G.Sampath(Office Assistant) working in the Court,