IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 30.03.2009 Coram The Honourable Mr.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.39240 of 2006 Ramakrishnan .. Petitioner vs 1. The Secretary to Government Revenue Department, Chennai 9. 2. The Principal Commissioner and Commissioner of Revenue Administration, Chennai. 3. The Collector, Thoothukudi District, Thoothukudi. .. Respondents This petition came to be numbered by transfer of O.A. No.3253 of 1999 from the file of the Tamil Nadu Administrative Tribunal praying for issuance of a Writ of certiorari to call for the records in connection with impugned order No.1 Na.Ka.A6.45014/93 dated 4.6.1996 of the Collector, Chidambaranar District, Thoothukudi and impugned order No.2 Na.Ka.No.Work 5(3)/81396/96 dated 9.1.1998 of the Principal Commissioner and Commissioner of Revenue Administration, Chennai-5 and impugned order No.3 G.O.(3D) No.27 dated 17.12.1998 of the Revenue Department, Chennai 9. For Petitioner : Mr.S.Ilamvaludhi For Respondents : Mr.P.Subramanian, AGP O R D E R The prayer in the writ petition is to quash the order of punishment imposed against the petitioner by an order of the third respondent dated 4.6.1996, confirmed by the second respondent by an order dated 9.1.1998 and the first respondent through G.O.(3D) No.27 dated 17.12.1998. 2. The petitioner was issued with a charge memo under Rule 17(a) of the Tamil Nadu Civil Services (D&A) Rules, containing four https://hcservices.ecourts.gov.in/hcservices/ charges. Eventhough charge memo was issued under Rule 17(a), enquiry was conducted by the District Supply Officer, Tuticorin, who gave a finding that the four charges were not proved. The disciplinary authority, differed with the findings of the enquiry officer in respect of charge No.1 and ordered to refund a sum of Rs.100/- and also imposed a punishment of withholding of increment without cumulative effect for six months. Appeal filed against the said order was also dismissed by the second and the Revision filed before first respondent was also dismissed. 3. The learned counsel for the petitioner submitted that when enquiry officer gave a finding that charges levelled against the petitioner including charge No.1 has not been proved, the disciplinary authority without giving any reason to differ with the said finding and calling for explanation for the differing view, has chosen to pass the order of punishment which is unsustainable in view of the Judgment in PUNJAB NATIONAL BANK AND OTHERS VS KUNJ BEHARI MISRA (1998)7 SCC 84 and in LAV NIGAM VS CHARIMAN AND MD.ITI LTD AND ANOTHER reported in (2006) 9 SCC 440 and also in violation of Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal). 4. Heard the learned Additional Government Pleader. 5. Admittedly, the enquiry officer has found that all the four charges have not been proved. However, the third respondent differed with the findings with regard to charge No.1 alone and , without communicating the differing view and calling for explanation from the petitioner has chosen to pass the order of punishment which was confirmed in appeal and Revision by the respondents 2 and 3 respectively by orders dated 9.1.1998 and 17.12.1998. 6. In PUNJAB NATIONAL BANK AND OTHERS VS KUNJ BEHARI MISRA reported in (1998)7 SCC 84, it is held by the Open Court that when the Enquiry Officer's finding is disagreed by the Disciplinary Authority, the Disciplinary Authority has to give reasons as to why he has differed with the Enquiry Officer's finding and the differing view should be communicated to the Delinquent Officer and after obtaining explanation from the Delinquent Officer, the Disciplinary Authority should record that the charges are proved. Paragraph 19 of the Judgment reads as follows: "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 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 20. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants. While agreeing with the decision in Ram Kishan case we are of the opinion that the contrary view expressed in S.S.Koshal and M.C.Saxena cases do not lay down the correct law." 7. The same is view is taken by the Apex Court in the decision reported in (2006) 9 SCC 440 (cited supra). In paragraph 9, 10, 13 and 14, it is held thus:- "9. ....The appellant specifically raised the issue that the disciplinary authority was obliged to give a separate show-cause notice if the disciplinary authority differed with the inquiry show-cause notice if the disciplinary authority differed with the inquiry officer. The High Court also held that there was no need to give two separate show-cause notices one before the disciplinary authority found against the employee while differing with the view of the inquiry officer, and another against the proposed punishment. It was further held that the two notices could be combined in one. The writ petition was accordingly dismissed. 10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed.... 13....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 https://hcservices.ecourts.gov.in/hcservices/ allowed and the decision of the High Court is set aside. 14. The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the appellant indicating his tentative disagreement with the findings of the inquiry officer." The said procedure has not been followed admittedly by the Disciplinary Authority in the present case. Hence, the punishment imposed against the petitioner based on the first charge cannot be sustained. The appellate authority and revisional authority also failed to note this aspect and dismissed the appeal and revision. The said orders are also unsustainable. 8. In the light of the above undisputed facts and following the Judgments above cited, the impugned order of the third respondent dated 4.6.1996 which was confirmed by the second and first respondents by orders dated 9.1.1998 and 17.12.1998 are set aside and the matter is remitted to the third respondent, the District Collector, Thoothukudi District to proceed from the stage of differing view expressed in charge No.1 and communicate the same to the petitioner and after considering the petitioners remarks, pass fresh orders if it is warranted. If any action is to be taken from the said stage, the same shall be commenced and completed within a period of three months from the date of receipt of a copy of this order. 9. The Writ Petition is allowed on the above terms. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. rpa To 1. The Secretary to Government Revenue Department, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/ 2. The Principal Commissioner and Commissioner of Revenue Administration, Chennai. 3. The Collector, Thoothukudi District, Thoothukudi. + 1 CC to the Government Pleader SR NO.11289 W.P.No.39240 of 2006 BK {CO} TP/21.4.2009. https://hcservices.ecourts.gov.in/hcservices/