IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.10.2010 CORAM THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI W.P.No.2213 of 2009 and M.P.No.2 of 2009 R.Sukumar ... Petitioner Vs. The Government of Tamil Nadu rep. by its Secretary to Government, Animal Husbandry and Fisheries (AH1) Department Secretariat, Chennai-9. ... Respondent Prayer : Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of certiorarified mandamus to call for the records pertaining to the letter bearing No.7473/AH1/2004-12 dated 27.5.2005 of the respondent and to quash the same and to further direct the respondent to exonerate the petitioner from the charges levelled against him in TDP.No.2 of 2003 dated 21-10-2003 with all attendant benefits. For Petitioner ... Mr.V.Suthakar For Respondent ... Mr.V.Viswanathan, AGP O R D E R The writ petition is filed to quash the order of the respondent dated 27.5.2005 made in letter No.7473/AH1/2004-12 and to further direct the respondent to exonerate the petitioner from the charges levelled against him in TDP.No.2 of 2003 dated 21-10-2003 with all attendant benefits. 2.The petitioner was while working as Veterinary Assistant Surgeon in Moolakaraipatti during 2003 along with 4 others faced disciplinary proceedings vide TDP No.2 of 2003 for the charges to the effect that the petitioner and four other persons purchased medicines for Rs.6,27,367/- without inviting quotation and related documents in support of three years market standings and without properly preparing the comparative statement for all statements received and https://hcservices.ecourts.gov.in/hcservices/ ignored the lowest tender without any valid reasons and failed to maintain absolute integrity and devotion to duty and also caused loss to the government. The departmental proceeding initiated for charge (1) against the petitioner and few others was commenced on 5.12.2003 and was concluded on 15.3.2004 and the Commissioner of Tribunal for disciplinary proceedings submitted the enquiry report on 26.3.2004 on the finding that the petitioner and three others who were arrayed as delinquent officers 2 to 4 were only recommended for purchase of medicines without any connivance with the delinquent officer no.1 and delinquent officer no.1 is responsible for the purchase of medicines in violation of the norms. However, the Government has differed from the findings of the Tribunal for Disciplinary proceedings, Tiruneveli and held that the charge no.1 levelled against the petitioner and few others as partly proved on the ground that the medicines were purchased without inviting quotations and without getting minimum three quotations for each medicine and without insisting for other documents as mentioned in charge No.1. The petitioner was called upon to submit his explanation for the above decision and the petitioner submitted his explanation that the finding of the Tribunal for Disciplinary Proceedings is correct and valid and further requested the government to accept the finding rendered by the enquiry Tribunal. Till date, the respondent has not passed any final order. Aggrieved against the notice issued by the respondent, the petitioner has come forward with this writ petition for the relief as stated supra. 3.The main grievance raised by the learned counsel for the petitioner is that the show cause notice issued by the respondent thereby disagreeing with the views expressed by the enquiry Tribunal without assigning any reason for arriving at tentative conclusion and without enclosing the copy of the proceedings is illegal and is in violation of the principles of natural justice and contrary to well laid legal procedure. It is further contended by the learned counsel for the petitioner that considering the period of delinquency, considering the delay in passing the final order and considering the harassment to the petitioner, further proceeding pursuant to the show cause notice is liable to be set aside and the petitioner is entitled to be exonerated from the charges levelled against him. 4.Per contra, the learned Additional Government Pleader appearing for the respondent would attempt to justify the action of the respondent on the ground that the Government is empowered to disagree with the views of the enquiry officer. 5.I have considered the rival submissions made on either side and perused the materials available on record. 6.In this case, the charge levelled against the petitioner and four others is the petitioner and others purchased medicine for a sum https://hcservices.ecourts.gov.in/hcservices/ of Rs.6,27,367/- as against the sum of Rs.5,00,000/- sanctioned by the Director of Veterinary Service, Chenani without inviting quotations and without getting minimum three quotations for each medicine and without insisting for other documents as mentioned in the charge sheet and without preparing comparative statement of all the quotations received, approved the purchase of same drug for Rs.6,27,367/- and has thus caused financial loss to the Government to the tune of Rs.39,935-86 in the manner unbecoming of the members of the service. Two more charges levelled against the delinquent officers 1 and 5 viz., Tvl.N.Uthanumallaiyan and Dr.Bharathi, were also tried along with the charges levelled against the petitioner and four others. The departmental enquiry was held by the Tribunal for Disciplinary Proceedings and the Tribunal after detailed enquiry has come to the conclusion that the delinquent officers 2 to 5 are not responsible for the purchase of medicine and finalisation of the same in accordance with the procedure and the delinquent officer no.1 in the cadre of Regional Joint Director of Animal Husbandry, Tuticorin and the Regional Joint Director of Animal Husbandry, Tirunelveli (in- charge) is solely responsible for the finalisation of purchase of medicine without calling for quotations. The enquiry Tribunal has after dealt with each charge in detail, arrived at such conclusion that the charge levelled against the petitioner and three others was not proved. The enquiry report was duly submitted to the respondent on 26.3.2004 and the same was followed by the order of the respondent in his letter No.7473/AH1/2004-12 dated 27.5.2005 which is impugned herein, in and under which the respondent has disagreeing with the view of the enquiry report, held the charge of purchasing the medicine in violation of the guidelines and in making excess payment as proved against all the delinquent officers 1 to 5. 7.The reading of the impugned order enclosed at pages 21 to 24 of the typed set of papers would reveal that the respondent has as rightly pointed out by the learned counsel for the petitioner, not assigned any reason for disagreeing with the view of the enquiry Tribunal in respect of charge no.1 involving the petitioner herein and para 2 of the impugned order would only reproduce the charges levelled against the petitioner and others and further proceed to say that the charge is proved without assigning any reasons for arriving at such different conclusion. Such manner in which the government disagreeing with the view of the enquiry officer is now challenged before this court as arbitrary, unfair, unreasonable and without jurisdiction and is also in violation of the principles of natural justice as the petitioner is now deprived of the opportunity to know the tentative reasons based on which contrary view is reached. 8.The learned counsel for the petitioner has also in support of such contention, cited the authorities (i) 1998 (7) SCC 84 in Punjab National Bank and others v. Kunj Behari Misra and (ii) 2006 (9) SCC https://hcservices.ecourts.gov.in/hcservices/ 440 in Lav Nigam v. Chairman and MD, ITI Limited and another. In both the cases, our Supreme Court has clearly held that the disciplinary authority while disagreeing with the view expressed by the enquiry officer on the charge, is bound to in the second show cause notice record its reasons for its tentative conclusion and is bound to give an opportunity of representation in writing and personal enquiry to the charged employee before differing with the findings of the enquiry officer as required under the principles of natural justice. The Supreme Court has in the judgment reported in 1998 (7) SCC 84 after referring to the earlier judgments of the Supreme Court reported in 1998 (3) SCC 385 in State of Rajasthan v. M.C. Sexena, 1986 (4) SCC 537 in Institute of Chartered Accountants of India v. L.K.Ratna, 1995 (6) SCC 157 in Ram Kishan v. Union of India and 1993 (4) SCC 727 in Managing Director, ECIL v. B.Karunakar, extracted the observations made by the Supreme Court in those cases. In all the cases referred to above, the Supreme Court is of the view that while the disciplinary authority disagreeing with the findings of the enquiry officer, should record its tentative reasons for disagreeing with the findings of the enquiring authority in the second show cause notice and 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 two Judge bench has at para 10 of the judgment in Ram Kishan case observed as follows: "The purpose of the show-cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the basis of which the findings of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the enquiry officer. In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect". 9. Out Supreme Court has in M.C.Saxena case expressed the view https://hcservices.ecourts.gov.in/hcservices/ of the Constitutional Bench of the Supreme Court in State of Assam v. Bimal Kumar Pandit case reported in AIR 1963 SC 1612. While the observation of the Supreme Court in Bimal Kumar Pandit case relates to Article 311(2) before its deletion by the 42nd Amendment, the same view is held good in Karunakar case even after the 42nd Amendment of the Constitution which has taken away the right to show cause against the penalty proposed to be imposed. The Supreme Court has in Karunkar case observed "the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, the enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions and the second right was taken away by the 42nd amendment but the right of the charged officer to receive the report of the enquiry officer was an essential part of the first stage itself. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence and the second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted." Thus, the Supreme Court has in 1998 (7) SCC case observed that "in departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority and the first stage of the enquiry is not completed till the disciplinary authority has recorded its findings and the principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing and when the enquiry report is in favour of the delinquent officer, but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard". 10.The Supreme Court has in the judgment reported in 2006 (9) SCC 440, observed in para 10 the consistent view taken by the Supreme Court is 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 imposed. https://hcservices.ecourts.gov.in/hcservices/ 11.In the present case, though the respondent has issued notice as laid down by our Supreme Court in the case, it does not either contain any reasons nor refer to any materials based on which the disciplinary authority disagreeing with the view of the finding officer. The disciplinary authority has simply reproduced the charges and the same is not further supported by any reasons for arriving at adverse conclusion. To that extent, the show cause notice is, as righty pointed out by the learned counsel for the petitioner, vitiated and is liable to be set aside. 12.Further, the relief sought for by the petitioner herein is not only to quash the impugned show cause notice, but also to exonerate him from the charges levelled against him. It is strenuously argued by the learned counsel for the petitioner that the impugned show cause notice was issued on 27.5.2005 and the petitioner has on receipt of the same submitted his explanation through proper channel and explained in detail as to how the Regional Joint Director of Animal Husbandry and his office is responsible for compliance of mandatory norms in the matter of purchase of medicine exceeding Rs.5 lakhs by calling for open tender and as to how the petitioner who is one of the members of the purchase committee is only entrusted with the job of only approving the selection of medicine without knowing the value of the same and nothing more and as to how the findings of the Tribunal is correct and valid and the different conclusion arrived at by the disciplinary officer is not supported by valid reasons. Till filing of this writ petition in 2009 and till date, no final order is passed by the authority concerned in this regard. The learned Additional Government Pleader is also unable to explain the stage of the proceedings and the reason for the delay in passing the final order. It is further argued by the learned counsel for the petitioner that as the impugned notice contains final conclusion without assigning any reason, the normal tendency of the disciplinary authority would be to confirm the same and the explanation called for from the petitioner is only an empty formality and the same would not serve any purpose. This Court finds much force in the arguments so advanced on the side of the petitioner. 13.The reading of the contents of the impugned notice reveals that it is not merely a show cause notice but the view expressed therein in the final conclusion arrived at by the disciplinary authority and further course of action to be held against the petitioner is only to impose punishment. In that event, any amount of explanation from the petitioner is not likely to influence the disciplinary authority to change its view. Though under normal circumstances, the matter will be remanded back to the authority concerned for fresh consideration, at the stage from which it is vitiated, the same course need not be adopted herein for the simple https://hcservices.ecourts.gov.in/hcservices/ reason that the disciplinary authority has already arrived at final conclusion that there is inordinate delay in passing the final order and no explanation is forth coming for such delay and in the event of allowing the respondent to proceed further at this distance of time, it is not likely to serve any purpose. Time and again, our High court has laid down that protracted enquiry proceedings resulting in unbearable mental agony and distress to the officer concerned should be avoided not only in the interest of government employee, but also in the public interest and also in the interest of inspiring confidence in the minds of the government employees. Our Supreme Court has in the judgment reported in 2005 (6) SCC 636 in P.V.Mahadevan v. MD. Tamil Nadu Housing Board case observed so and further proceeded to say that the appellant therein had already suffered enough and more on account of the disciplinary proceedings and the same would be much more than the punishment and for the mistake and delay committed by the department in the procedure in passing the final order, the appellant should not be made to suffer and it is necessary to draw the curtain and put an end to the enquiry. The same reasoning is also expressed by the Supreme Court in Punjab National Bank case in 1998 (7) SCC 84 wherein the Supreme Court at para 21 of the judgment, has after considering the length of time, declined to remand the matter for the start of another innings. The reasoning laid down in the judgment reported in 2005 (6) SCC 636 in P.V.Mahadevan v. MD. T.N. Housing Board is in my considered view, squarely applicable to the facts of the present case. The proceedings of the respondent is in view of inordinate delay and in view of mental agony suffered by the petitioner herein, hence liable to be quashed and the petitioner is entitled to get all the attendant benefits. 14.In the result, the writ petition is allowed as prayed for. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rk https://hcservices.ecourts.gov.in/hcservices/ To The Secretary to Government, Animal Husbandry and Fisheries (AH1) Department Secretariat, Chennai-9. +1cc to Govt. Pleader Sr 76140 +1cc to Mr.V.Suthakar, Advocate Sr 76419 JP(CO) km/15.11. W.P.No.2213 of 2009 https://hcservices.ecourts.gov.in/hcservices/