IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 07..01..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. Nos. 34138 & 43641 of 2002 and W.P.M.P. No. 64128 of 2002 in W.P. No. 43641 of 2002 W.P. No. 34138 of 2002: 1. Union of India Rep. by the Principal Secretary (Power) Electricity Department Government of Pondicherry Pondicherry 2. Superintending Engineer – I Electricity Department Government of Pondicherry Pondicherry ... Petitioners vs. 1. Registrar Central Administrative Tribunal Chennai – 104 2. T. Velayudham ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records pertaining to the order dated 06.3.2002 passed by the Tribunal in O.A. No. 358 of 2001 and quash the same. For Petitioners : Mr. Syed Mustafa, AGP (Pondy) For Respondent 2 : Mr. V. Ajayakumar https://hcservices.ecourts.gov.in/hcservices/ W.P. No. 43641 of 2002: T. Velayudham ... Petitioner vs. 1. Registrar Central Administrative Tribunal Chennai – 104 2. Union of India Rep. by the Principal Secretary (Power) (Appellate Authority) Electricity Department Government of Pondicherry Pondicherry 3. Superintending Engineer – I (Disciplinary Authority) Electricity Department Government of Pondicherry Pondicherry ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records pertaining to the order dated 06.3.2002 passed by the Tribunal in O.A. No. 358 of 2001 and quash the same and consequently direct the respondents to reinstate him in service with full backwages and other service benefits with retrospective effect from 06.3.2002. For Petitioner : Mr. V. Ajayakumar For Respondents 2&3 : Mr. Syed Mustafa, AGP (Puducherry) COMMON ORDER (Order of the Court was made by K. CHANDRU, J.) Heard the arguments of Mr. Syed Mustafa, learned Additional Government Pleader, (Puducherry) representing the Puducherry Government and Mr. V. Ajayakumar, learned counsel appearing for the petitioner in W.P. No. 43641 of 2002 and second respondent in W.P. No. 34138 of 2002 and have perused the records. 2. In W.P. No. 34138 of 2002, the Union of India, represented by the Principal Secretary (Power), Electricity Department, Government of Puducherry and another subordinate officer have https://hcservices.ecourts.gov.in/hcservices/ challenged the order of the Central Administrative Tribunal [for short, 'CAT'] dated 06.3.2002 made in O.A. No. 358 of 2001 insofar as it had modified the punishment of dismissal into one of compulsory retirement so that the second respondent therein will have the retiral benefits but without any further monetary benefits. It was also directed that the period of suspension of the second respondent would be treated as qualifying service for the purpose of retiral benefits and that he will also be entitled for payment of subsistence allowance right from 06.3.1985 to 07.02.2001. 3. The second respondent T. Velayudham filed W.P. No. 43641 of 2002 challenging that portion of the order of the CAT dated 06.3.2002 in denying him the benefit of reinstatement with full wages and other service benefits with effect from 06.3.1985. 4. In view of the interconnectivity between the two matters, these two writ petitions were taken up for hearing together and a common order is passed. For the sake of convenience, the parties are referred to as the Union of India and T. Velayudham. 5. T. Velayudham joined as Lower Division Clerk on 13.7.1966 and was promoted as Upper Division Clerk in the year 1980 and was posted to work in the Electricity Department. On 02.7.1983, a charge memo was issued containing four charges. He requested the disciplinary authority to furnish copies of the documents upon which charges were framed. The disciplinary authority refused to furnish the copies of documents which according to him disabled him from submitting any explanation. The Enquiry Officer set him ex parte and proceeded with the enquiry. Even his letter sent to the Enquiry Officer came back undelivered with the postal endorsement 'Door Locked'. 6. By an order dated 06.3.1985, he was removed from service holding that the charges levelled against him have been proved. His appeal dated 04.7.1985 filed was also dismissed by the appellate authority vide order dated 24.02.1986. Thereafter, he moved the CAT with O.A. No. 723 of 1986 wherein and by which, he was directed to file Review Petition to the President of India. The said Review Petition was dismissed by an order dated 14.9.1993. 7. Once again, he moved the CAT with O.A. No. 176 of 1994. The CAT, by its judgment dated 06.01.1997, set aside the order of removal and directed the Union of India to conduct a fresh enquiry after supplying all the documents within a time frame. Then Velayudham sent two representations dated 26.01.1997 and 27.02.1997. However, he was suspended by an order dated 13.3.1997 on a deemed basis w.e.f. 06.3.1985 and no subsistence allowance was paid. https://hcservices.ecourts.gov.in/hcservices/ 8. The Union of India, instead of conducting an enquiry on the basis of the existing charge-sheet and pursuant to the orders of the CAT, framed a fresh charge memo and supplied documents along with the said charge-memo. To the fresh charge-memo dated 13.3.1997 issued to him, Velayudham submitted an explanation dated 14.3.1997 and denied all the charges. The Enquiry officer, by his report dated 04.6.1997 held that none of the four charges were proved. But the disciplinary authority, by an order dated 12.8.1997, once again, remitted the matter to the Enquiry Officer calling for a fresh report without passing any final orders on the enquiry report. He was of the view that the Enquiry Officer had not conducted the enquiry according to the Rules and he directed Velayudham to appear before the Enquiry Officer. By the time, the six months time framed by the CAT was over on 06.7.1997 itself and no further extension was sought for from the CAT. 9. In the meanwhile, the Enquiry Officer appointed by the disciplinary authority wrote a letter dated 03.10.1997 questioning the unwarranted remarks made against him. Velayudham also by letter dated 06.11.1997 sought for subsistence allowance but the same was not forthcoming. 10. By an order dated 02.02.1998, the disciplinary authority amended the charge-memo and introduced new evidence to fill up the gap and also named two more witnesses in the Annexure IV to the charge-memo. Despite such a procedure was not contemplated under Rule 14 (15) of the CCS (CCA) Rules, after amending the charge-memo, the second petitioner remitted the matter to the same Enquiry Officer by his order dated 02.02.1998. When he filed objection, the Enquiry Officer, by an order dated 16.02.1998, held that the new evidence shall not be permitted and that the order of the second petitioner remitting the matter for further enquiry was not maintainable without the leave of the CAT. 11. Thereafter, the disciplinary authority himself took upon the task of conducting the enquiry as per the amended charge-memo vide order dated 31.12.1998. Velayudham filed an appeal against the order of the disciplinary authority in conducting an enquiry. The disciplinary authority conducted ex parte enquiry and after examining two witnesses, he passed an order disagreeing with the Enquriry Officer and deferred from the findings of the Enquiry Officer. Finally, by an order dated 28.10.1999, he was removed from service. He preferred an appeal to the first petitioner Union of India and the same was dismissed by an order dated 07.02.2001. 12. Against this fresh cause of action, O.A. No. 358 of 2001 was filed by Velayudham and the CAT, by its judgment dated 06.3.2002, partly allowed the O.A. The CAT also found fault with the non- payment of subsistence allowance. Aggrieved by the same, both Union of India and Velayudham filed two writ petitions as noted https://hcservices.ecourts.gov.in/hcservices/ already. Pending the writ petition, this Court granted stay of the operation of the order of the CAT on 03.9.2002 in W.P. No. 34138 of 2002. 13. In the light of the rival contentions, it is necessary to decide two questions (1) whether the disciplinary authority can frame a fresh charge-memo when he found that the Enquiry Officer had exonerated the charge-sheeted employee and (2) whether the CAT was correct in directing payment of subsistence allowance for the period for which Velayudham was not paid the said allowance. 14. In this regard, it is necessary to refer to the two decisions of the Supreme Court in this regard. In 1971 (2) SCC 102 [K.R. Deb v. Collector of Central Excise, Shillong], the Supreme Court, after referring to Rule 15 of the CCS (CCA) Rules, held that in case the Enquiry Officer report was not acceptable to the disciplinary authority, then he can defer with the said findings and record his own findings on the basis of the enquiry conducted already. But the disciplinary authority cannot directly hold another enquiry. In this context, it is relevant to refer to paragraphs 11 to 13 of the said order. Para 11: "Rule 15(1) of the Classification and Control Rules reads as follows: “(1) Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1950, no order imposing on a government servant any of the penalties specified in clauses (iv) to (vii) of Rule 13, shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided.” Clause (2) of Rule 15 provides for framing of charges and communication in writing to the government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under clause (3) the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish https://hcservices.ecourts.gov.in/hcservices/ charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. Under clause (9) “the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge.” Clause (10) provides for issue of show-cause notice. Para 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. Para 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." [Emphasis added] 15. In the decision relating to Union of India v. K.D.Pandey and another [2003 SCC & (L&S) 791], a similar view was taken by the Supreme Court and the following passages found in paragraphs 4 and 5 may be usefully reproduced: Para 4: "On remit the inquiry officer made a report finding Respondent 1 guilty of four charges. Based on that report, the Railway Board dismissed Respondent 1, which was challenged in the dispute raised by him. The Tribunal as well as the High Court are of the view that on the same material a fresh opinion has been furnished and it was not a case of further inquiry. Indeed, it was not noticed by the disciplinary authority that the https://hcservices.ecourts.gov.in/hcservices/ inquiry held earlier was bad or that the management or the establishment did not have the proper opportunity to lead evidence or the findings were perverse. In the absence of the same, it was held that there was no justification on the part of the disciplinary authority to commence fresh inquiry on the same set of charges. Para 5: Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly." [Emphasis added] 16. The above two decisions will clearly show that the procedure adopted by the second petitioner in ordering for a second enquiry by the same Enquiry Officer by framing fresh charges, or after his refusal to conduct an enquiry by himself by filling up the gaps in the earlier enquiry, may not be proper and the enquiry conducted by the Union of India is liable to be set aside. 17. A perusal of the original charge-sheet dated 13.3.1997 issued by the second petitioner will clearly show that the charges are vague and the second petitioner was more piqued about the union activities of Velayudham. In fact, the substantial charge was that he became the President of a Trade Union and that was considered to be in violation of Government Servants Conduct Rules. But no such Conduct Rule was cited in support of the charge-sheet. The Enquiry Officer was right in holding that he was not guilty of the said charge. https://hcservices.ecourts.gov.in/hcservices/ 18. Mr. Syed Mustafa, learned Additional Government Pleader stated that non-payment of subsistence allowance cannot be held to be a ground to set aside the enquiry. In this regard, he relied upon the judgment of the Supreme Court in Indra Bhanu Gaur v. Committee, Management of M.M. Degree College and others [2004 (1) SCC 281] and referred to the following passage found in paragraph 7 of the said order: Para 7: "From the judgment of the High Court, in the writ petition it appears that there is no reference to the alleged infirmity on account of subsistence allowance having not been paid. There was also no specific finding recorded for the question of bias as alleged presently. We find that there was total lack of cooperation from the appellant as the factual background highlighted above would go to show. Ample opportunity was granted to the appellant to place his case. He did not choose to do so. It is only a person who is ready and willing to avail of the opportunity given, who can make a grievance about denial of any opportunity and not a person like the appellant who despite repeated opportunities given and indulgence shown exhibited defiance and total indifference to extending cooperation. Therefore, on that score the appellant cannot have any grievance. So far as the effect of not paying the subsistence allowance is concerned, before the authorities no stand was taken that because of non-payment of subsistence allowance, he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. The appellant could not plead or substantiate also that the non-payment was either deliberate or to spite him and not due to his own fault. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as absolute proposal in law that non-payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings." 19. Finally, the learned Additional Government Pleader relied upon the judgment of the Supreme Court in U.P. State Textile Corporation Ltd. v. P.C. Chaturvedi and others [2005 (8) SCC 211] wherein Indra Bhanu Gaur's case (cited supra) was https://hcservices.ecourts.gov.in/hcservices/ cited and followed. This is for the purpose of stating that the CAT was wrong in directing the payment of subsistence allowance for the period from 06.3.1985 to 07.02.2001. He relied upon the following passages found in paragraphs 12 and 14 of the said judgment and submitted that the matter should have been remitted to the authorities to decide the question of payment of subsistence allowance. Para 12: "So far as the effect of not paying the subsistence allowance is concerned, before the authorities no stand was taken by Respondent 1 employee that because of non- payment of subsistence allowance, he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. He did not plead or substantiate also that the non-payment was either deliberate or to spite him. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as an absolute position in law that non-payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings." Para 14: "It is to be noted that no grievance was made at any time during the pendency of the proceedings that Respondent 1 employee was being prejudiced on account of non-payment of subsistence allowance. In fact, for the first time the request was made for payment of subsistence allowance on 5-1-1993 i.e. after completion of the enquiry. The ratio in Indra Bhanu case1 is clearly applicable to the facts of the present case." 20. However, Velayudham is entitled to succeed on the ground that the charges framed against him are totally vague and that the Enquiry Officer having found that he was not guilty of the charges and that the second petitioner was not justified in framing a new charge-sheet and the Enquiry Officer having refused to conduct an enquiry, the Disciplinary authority himself conducting an ex parte enquiry, was totally illegal and contrary not only to CCS (CCA) Rules but also to the decisions of the Supreme Court referred to above. 21. In view of the above, we have no hesitation in setting aside the order passed by the CAT in converting the dismissal into https://hcservices.ecourts.gov.in/hcservices/ one of compulsory retirement when the charges were not proved in the enquiry. Accordingly, W.P. No. 43641 of 2002 filed by Velayudham stands allowed and the writ petition filed by the Union of India in W.P. No. 34138 of 2002 will stand dismissed. Since the said Velayudham had reached the age of superannuation, the Government of Puducherry is directed to pay all the backwages and other attendant benefits from the date of dismissal to the date of retirement and also pay all the terminal benefits including pensionary benefits. The order of this Court shall be complied with within a period of eight weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. Connected Miscellaneous Petition is closed. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar gri To 1. The Registrar Central Administrative Tribunal Chennai – 104 2. The Superintending Engineer, (Disciplinary Authority) Electricity Department, Government of Pondicherry, Pondichery. 3. The Principal Secretary (power) to Union of India, (Appellate Authority), Electricity Department, Government of Pondicheery, Pondicherry. + 2 Ccs to Sr.Government Pleader – cum-Public Prosecutor, S.R.Nos.1108 & 1110 + 2 Ccs to M/s.V.Ajaykumar, S.R.Nos.1158 & 1159 W. P. Nos. 34138 & 43641 of 2002 KSK(CO) SRA (29/04/2008) https://hcservices.ecourts.gov.in/hcservices/