IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-4-2010 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.747 of 2007 L. Anand ... Petitioner Vs 1. The Secretary to Government, Transport Department, Fort St.George, Chennai – 9. 2. The Finance Committee, State Express Transport Corporation Tamil Nadu Ltd., Thiruvalluvar House, No.2, Pallavan Salai, Chennai – 2. 3. The Managing Director, State Express Transport Corporation Tamil Nadu Ltd, Thiruvalluvar House, No.2, Pallavan Salai, Chennai – 2. ... Respondents PRAYER : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ of certiorarified mandamus calling for the records relating to the third respondent in F.O.No.016111/DL6/SETC/2003 dated 17.2.2005 and the consequential order passed in appeal by the second respondent herein which was communicated by the third respondent in Letter No.86/25177/DL6/SECTC/05, dated 20.7.2006 and the order passed in review petition by the first respondent herein which was communicated by the third respondent herein in letter No.86/25177/DL6/SETC/05, dated 10.11.2006 and quash the same and consequently direct the respondents to reimburse the reduced pay and to refix the petitioner's pay scales and confer all monetary and consequential benefits including the promotion post of managerial cadre on par with petitioner's juniors and disburse arrears of salary. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Anand for M/s.Anand and Surya for Mr.R.Tholkappian For 1st Respondent : Mr.R.Neelakandan, Government Advocate For Respondent 3 : Mr.Vijayan for Mr.G.Sankaran For Respondent 2 : Served O R D E R The prayer in the writ petition is to quash the order of the third respondent dated 17.2.2005 which was confirmed in appeal by the second respondent and communicated by the third respondent in letter dated 20.7.2006 and the order passed by the first respondent in review petition, which was communicated by the respondent by letter dated 10.11.2006 and direct the respondents to reimburse the reduced pay and refix the petitioner's scale of pay and confer all monetary and consequential benefits including promotion on par with his juniors and disburse the arrears of salary. 2. The facts in nutshell for disposal of this writ petition are as follows: (a) The petitioner joined the services of the then Pallavan Transport Corporation (Express Wing), a State owned Transport Corporation, as Assistant Manager on 20.9.1976 and was promoted as Deputy Manager on 20.9.1982. The petitioner was further promoted as Senior Deputy Manager on 14.4.1993 and he worked as General Manager in various stations. Petitioner retired from service on 30.6.2006, while working in the State Express Transport Corporation. (b) When the petitioner was working as General Manager (Technical) in the erstwhile Annai Sathya Transport Corporation (ASTC), a charge memo was issued on 21.3.2003 as if the petitioner had violated the instructions of the Government while depositing the Motor Accident Claims Tribunal award amounts and the same is a misconduct under Rule 28(1) of the Conduct Rules of the Common Service Rules of the Corporation. (c) On receipt of the charge memo, petitioner submitted his explanation by stating that at that time, the petitioner acted as Member of the Motor Accident Claims Tribunal sub-Committee and three other persons were also charged with the same charges. https://hcservices.ecourts.gov.in/hcservices/ (d) The explanation submitted by the petitioner was not found acceptable, hence an enquiry was conducted. The Enquiry Officer found that the charges are proved. Thereafter a show cause notice was issued on 27.4.2004 with regard to the proposed punishment of reduction in basic pay at Rs.12,000/- from the present basic pay of Rs.15,750/- for three years. Petitioner submitted his reply on 22.6.2004. Copy of the enquiry report was also enclosed with the said notice. Third respondent without considering the reply imposed the punishment of reduction in basic pay by fixing the basic pay at Rs.12,000/- from the present basic pay of Rs.15,750/- for one year by order dated 7.3.2005. (e) Aggrieved by the said order of punishment, petitioner preferred appeal before the second respondent on 28.3.2005. The said appeal was rejected by a non-speaking order and the same was communicated by the third respondent on 20.7.2006. Thereafter petitioner filed a review petition before the first respondent on 14.8.2006, which was also rejected on the ground that after expiry of six months review petition cannot be entertained. The said decision of the first respondent was communicated by the third respondent on 10.11.2006. (f) The said orders of the respondents are challenged in this writ petition on the ground that four officials were involved in the same occurrence and the highest Officer being the Managing Director, against whom disciplinary action can be taken only by the Government, the charge framed by the Corporation is without jurisdiction; that the petitioner having not violated any of the Government instructions and as there is no requirement to get prior approval of the Finance Committee before depositing the award amount, the charge itself is baseless; that taking note of the urgency in satisfying the decree amount, when execution petition was filed, the amount was deposited and subsequently sought for ratification from the Finance Committee and the said procedure was followed only to avoid attachment of the Corporation properties in execution proceedings; that the findings of the Enquiry Officer is baseless and therefore the order passed on the basis of the said Enquiry Officer's findings cannot be sustained; that the procedure followed by the third respondent in issuing final show cause notice before accepting the findings of the Enquiry Officer is in violation of the principles of natural justice; that the impugned punishment was given without recording the findings of guilt by the disciplinary authority and as such the order of punishment is without any application of mind; that for the same allegation Chief Accounts Officer was proceeded and in the appeal the said punishment was modified for six months instead of one year; that the Appellate Authority has not passed any speaking order; that the review petition having been filed on https://hcservices.ecourts.gov.in/hcservices/ 14.8.2006, after communication of the order passed in appeal on 21.7.2006, the same is within the time and the Government ought not to have rejected the review on the ground of delay; and that, no motive is attributed against the petitioner and the petitioner having acted in good faith to protect the interest of the Corporation, no misconduct warranting disciplinary action can be attributed against the petitioner. 3. The third respondent filed counter affidavit stating that the petitioner, while working as General Manager in the erstwhile Annai Sathya Transport Corporation, had remitted the amount to satisfy the award amount without following the instructions of the Government. Petitioner being a member of the sub-Committee, should have followed the instructions of the Government and as per the instructions issued by the Government in letter dated 5.7.2002 prior approval of the Finance Committee/Board should have been obtained for making payment. As the petitioner had not obtained prior approval, the petitioner was issued with charge memo and after conducting enquiry, punishment of reduction in basic pay for one year was imposed, which was also confirmed in appeal. The review petition having been filed after the prescribed time limit, the same was rejected as time barred. There is no procedural violation in passing the order of punishment. Petitioner having violated the procedures is not entitled to challenge the order of punishment. 4. Heard the learned counsel for the petitioner as well as the respondents. 5. From the above pleadings, the following points arise for consideration in this writ petition: (i) Whether the charges framed against the petitioner by memo dated 21.3.2003 are maintainable ? (ii) Whether the Enquiry Officer is justified in giving a finding with regard to the proof of charges ? (iii) Whether the disciplinary authority is justified in accepting the Enquiry Officer's report before serving the same to the petitioner and getting his remarks about the findings ? (iv) Whether the Disciplinary Authority is bound to record his own reasons with regard to the findings of guilt while imposing punishment ? (v) Whether the appellate authority is bound to give reasons while rejecting the appeal filed by the petitioner ? (vi) Whether the Government is justified in dismissing the review https://hcservices.ecourts.gov.in/hcservices/ petition on the ground of delay ? Issue No.(i) Whether the charges framed against the petitioner by memo dated 21.3.2003 are maintainable ? 6. The charges framed against the petitioner by memo dated 21.3.2003 read as follows: "1. Before taking a decision, you have to follow the instructions, if any available at the time of taking a decision. You are one of the Committee members suggested to settle the award amount without following the instructions of the Government. It shows your gross negligence on your part resulting in inconvenience to the Corporation which is a misconduct under rules 28(1) of the Conduct Rules of the Common Service Rules of this Corporation. 2. As per the instructions of the Government letter dated 5.7.2002 prior approval of the Finance Committee/Board should be obtained for making payment. But you have not followed the above instructions. Hence you have breached the above instructions, which is a misconduct under rule 28(r) of the Conduct Rules of the Common Service Rules of this Corporation." 7. In the said charge memo it is stated by the third respondent that legal opinions have been obtained from the Standing Counsels of the Tamil Nadu State Transport Corporation (Salem Division-II) at Krishnagiri and High Court, Madras and both the Advocates have opined "not fit case for appeal". Hence it was decided to remit the award amount with interest and cost in M.C.O.P.Nos.805 of 2000, 1085 of 2000 and 263 of 2001 on the file of Additional District Judge Court-II, Krishnagiri, for a sum of Rs.4,08,000/-, Rs.4,00,000/-; and Rs.7,34,706/- with 9% interest from 21.11.2001, 25.1.2002 and 15.4.2002 respectively and cost of Rs.14,354/- in M.C.O.P.No.805 of 2000 and Rs.21,083/- in M.C.O.P.No.263 of 2001 was ordered to be paid and place the subject in the ensuing Finance Committee/Board for approval. It is further stated in the charge memo that in the meantime the Motor Accident Claims Tribunal passed an order in the execution petition filed by the claimants to attach the Corporation properties. In view of the same, the subject was discussed by the sub-Committee and after discussion it was decided to settle the award amounts and get ratification from the Finance Committee/Board later. Based on the said decision taken in the https://hcservices.ecourts.gov.in/hcservices/ sub-committee, award amount with interest and cost have been remitted in the Tribunal on 19.11.2002, 4.12.2002 and 11.12.2002. Similarly in M.C.O.P.No.37 of 1996, the Tribunal at Dharmapuri passed an award for a sum of Rs.4,55,000/- with interest at the rate of 9% from 31.7.1995 till the date of settlement with cost of Rs.15,491.50. For the said award also legal opinion was obtained from both the Counsels at Dharmapuri and High Court, Madras and both the advocates have opined, "not fit case for appeal". However, the Committee has decided that appeal against the order of the Tribunal may be filed before the High Court and ratification may be obtained from the Finance Committee/Board, based on which an appeal was filed in time. In the meanwhile, the Tribunal in the execution proceedings ordered attachment of the Corporation property and therefore the sub-committee decided to settle the matter to avoid the attachment and to get ratification from the Finance Committee/Board. Based on the above decision award amount with interest and cost to the tune of Rs.7,44,368/- was deposited on 20.11.2004 in the Motor Accident Claims Tribunal, Dharmapuri, with further prayer to retain the amount in the Court account till further directions are obtained from the High Court, Madras. 8. The above four cases have been placed before the Finance Committee meeting held on 3.12.2002 and in the Board meeting held on 26.12.2002, for ratification. The Board in Resolution No.113/2002-2003 resolved not to ratify the action of the Managing Director in having deposited the amount without prior approval of the Finance Committee/Board and further resolved to prefer appeal in all the four cases, based on which appeals have been filed before the High Court, Madras. It is stated in the charge memo that on the basis of the above decision of the Board not to ratify the action of the petitioner in depositing the amount without prior approval, the said charges were framed. 9. The petitioner submitted his explanation to the third respondent on 10.4.2003 stating that in all the four cases orders have been passed in execution petitions and therefore the petitioner was left with no option except to deposit the award amount and in all cases the Legal Advisors gave opinion as, "not fit case for appeal" and only in one case appeal was filed. In the meanwhile orders were passed in the execution proceedings. 10. Petitioner in his explanation further stated that only to avoid attachment of the Corporation properties, with bona fide intention the sub-Committee decided to deposit the amount so as to safeguard the image of the Corporation, failing which the attachment of the Corporation's properties would have be given effect, which will spoil the image of the Corporation through TV news channels and Newspapers. It is further stated that as a sub- https://hcservices.ecourts.gov.in/hcservices/ Committee member, petitioner acted for the best interest of the Corporation and therefore the charges framed may be dropped. Petitioner further stated, no other dereliction of duty was found against him or any charge memo was issued to him at any point of time. 11. Order XXI Rule 1 CPC states that all money payable under a decree shall be paid to the decree-holder by deposit into the Court or out of Court to the decree-holder or otherwise and if the amount is paid or deposited interest, if any, shall cease to run from the date of such payment/deposit. Thus, the petitioner only safeguarded the interest of the Corporation. It is also worthwhile to notice in this case that the respondents have attributed no motive against the petitioner for depositing the award amount in Courts. (a) In the decision reported in (1999) 7 SCC 409 (Zunjarrao Bhikaji Nagarkar v. Union of India), the Supreme Court considered similar issue and held that negligence in exercising quasi- judicial power by mere carelessness or inadvertence or omission is not sufficient to initiate proceedings under misconduct. Unless there is a culpable negligence or ill-motive, no charge could be framed. In paragraphs 43 and 44, the Supreme Court held as follows: "43. If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi- judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their https://hcservices.ecourts.gov.in/hcservices/ functions without fear or favour because of the constant threat of disciplinary proceedings. 44. Considering whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. The charge of misconduct against him was not proper. It has to be quashed." (b) In the decision reported in 2007 (3) LLN 106 = (2007) 4 SCC 566 (Inspector Prem Chand v. Government of N.C.J. of Delhi) following the earlier decisions, the Supreme Court held that the acts of negligence, error of judgment or innocent mistake, do not constitute misconduct. In the above case, the appellant/Police Officer failed to seize the tainted money on receipt of complaint of alleged demand of bribe by an Inspector (Malairiya). Department initiated disciplinary proceeding on the charge that he had not seized the tainted money, which could be an important piece of evidence in criminal proceeding. The Supreme Court held that the Police Inspector could not be said to have committed any misconduct merely because in the opinion of the higher authorities he ought to have seized the tainted money. The Supreme Court in paragraphs 10 to 12 dealt with the term misconduct, which reads as follows: "10. In State of Punjab v. Ram Singh, Ex- Constable (1999 (2) LLN 419) it was stated, in para.5, at page 422: “Misconduct has been defined in Black’s Law Dictionary , 6th Edn. at p.999, thus: ‘A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.’ Misconduct in office has been defined as: ‘Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.’ ” https://hcservices.ecourts.gov.in/hcservices/ 11. In P.Ramanatha Aiyar’s Law Lexicon, 3rd Edn., at p.3027, the term “misconduct” has been defined as under: “The term ‘misconduct’ implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word ‘misconduct’ is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. ‘Misconduct’ literally means wrong conduct or improper conduct.” (See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju (2006 (2) LLN 54)) 12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J.Ahmed ((1979) 2 SCC 286) whereupon Mr Sharan himself has placed reliance, this Court held so stating: “Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster 17 Q.B.536, 542). A https://hcservices.ecourts.gov.in/hcservices/ disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers (1959(1) W.L.R.698)). This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur (61 B.L.R. 1569) and Satubha K. Vaghela v. Moosa Raza (10 G.L.R. 23). The High Court has noted the definition of misconduct in Stroud’s Judicial Dictionary which runs as under: ‘Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct ’.” (emphasis supplied) (c) A Division Bench of this Court in the decision reported in 1999 (2) LW 174 (A.M.Sankaran v. The Registrar, High Court, Madras), quashed an order of compulsory retirement passed against the judicial officer for destroying the seized spirit without examining or recording any evidence regarding the inflamable nature of the spirit. This court held that the said order having been passed during discharge of the function as judicial officer, framing such charge without any allegation or recklessness or abuse of power, cannot be sustained. (d) The above said decisions were followed by me in the decision reported in (2008) 3 MLJ 766 (S.Muthuramu v. State of Tamil Nadu) and quashed the disciplinary proceeding initiated against an Additional Special Deputy Collector (Stamps). 12. From the perusal of the charge memo and explanation submitted by the petitioner and on the basis of the materials available in this case and applying the decisions referred above to the facts of this case, I am of the firm view that issue No.(i) has to be answered in favour of the petitioner. Issue No.(ii) Whether the Enquiry Officer is justified in giving a finding with regard to the proof of charges? 13. On a perusal of the Enquiry Officer's report it is seen that the explanation given by the petitioner on 11.4.2003 alone is relied on. The plea of the petitioner that he has acted bona fidely and that only to avoid attachment of the Corporation properties the award amounts were deposited, has not been considered. The Enquiry Officer proceeded on the basis that the https://hcservices.ecourts.gov.in/hcservices/ petitioner has accepted the guilt and therefore gave a finding to the effect that the charges are proved. The said finding given by the Enquiry Officer is based on no evidence and therefore the same is to be treated as perverse finding. 14. How the Enquiry Officer shall conduct enquiry and his importance in disciplinary proceeding are clearly laid by the Supreme Court in several cases. (i) In the decision reported in 2009 (1) Supreme 438 : (2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank and Others) it is held that departmental proceeding being a quasi judicial proceeding, the charges levelled against the delinquent officer must be found to have been proved. Paragraphs 14 & 23 of the said judgment (in SCC) are extracted hereunder, "14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. 23. ................ A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no https://hcservices.ecourts.gov.in/hcservices/ circumstances be held to be a substitute for legal proof." (Emphasis Supplied) (ii) In the decision reported in (2010) 2 SCC 772 (State of U.P. v. Saroj Kumar Sinha) in paragraphs 28 to 30 it is held thus, "28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department /disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. .............. 29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to