IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.04.2010 CORAM: THE HON'BLE MR.JUSTICE B.RAJENDRAN W.P.Nos.37870 and 35755 of 2006(T) (O.A.No.8535 and 8790 of 1998) S.Krishnamoorthy ... Petitioner in both W.P.Nos. Versus 1. The Commissioner of Civil Supplies & Consumer Protection Department, Chepauk, Chennai – 600 005. 2. The Joint Commissioner I, Civil Supplies & Consumer Protection Department, Chepauk, Chennai – 600 005. 3. The Assistant Commissioner, Civil Supplies & Consumer Protection Department, Ambattur Zone, Chennai – 600 053. ... Respondents in both W.P.Nos. Prayer in W.P.No.37870 of 2006: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.8535 of 1998 from the file of Tamil Nadu Administrative Tribunal with a prayer to set aside the impugned proceedings passed by the second respondent in R.c.No.A3/27859/96 dated 29.06.1998 imposing the punishment of 'Censure' on the petitioner. Prayer in W.P.No.35755 of 2006: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.8790 of 1998 from the file of Tamil Nadu Administrative Tribunal with a prayer to direct the second respondent to include the name of the petitioner in the panel of Personal Assistants to Assistant Commissioner / Deputy Commissioner of Civil Supplies Department, for the year 1998, issued by the second respondent in R.c.No.A1/10022/98 dated 28.09.1998 according to the feeder category seniority of the petitioner. For Petitioner : Mr.S.Vadivelu For Respondents : Mrs. Lita Srinivasan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The facts leading to filing of O.A.No. 8538 of 1998 was that while the petitioner was working as Office Superintendent in the Commissioner of Civil Supplies, on 20.08.1996, he was suspended from service on the ground that the targets prescribed by the Superior Officers was not achieved by him and also for violating the directions issued by the Commissioner of Civil Supplies. Thereafter, the suspension order was revoked by the Commissioner on 20.02.1997. Subsequently, the third respondent framed six charges against the petitioner under Rule 17(b) of the Tamil Nadu Civil Service (Discipline & Appeal) Rules. On receipt of the charge memo, the petitioner wrote letters on 11.09.1996 and 23.09.1996 seeking to furnish certain documents for his perusal, but the same was not furnished to him. However, by letter dated 10.02.1997, the third respondent informed the petitioner that the documents sought for in item Nos. 1 to 3 could not be furnished. In the absence of the documents sought for by the petitioner, he submitted his explanation on 10.02.1997 denying the charges. Subsequently, an enquiry officer was appointed, who, after conducting an enquiry found that charge No.4 alone was proved and the other charges namely 1, 2, 3, 5 and 6 were held not proved. Thereafter the enquiry officer’s report dated 02.02.1998, was communicated to the petitioner by the second respondent in his letter dated 02.03.1998 for which the petitioner sent a detailed reply on 04.03.1998 as against the finding of the 4th charge. But the disciplinary authority passed an order of punishment of censure, taking into considering the charge No.5 also, even though, it was held not proved by the enquiry officer. The Disciplinary authority had disagreed with the findings of the enquiry officer in respect of charge No.5 and imposed the punishment of censure. 2. The only ground which was mainly raised by the petitioner was that when the Disciplinary Authority disagreed with the findings of the enquiry officer in respect of charge No.5, a duty is caused upon the disciplinary authority to issue a notice calling for an explanation and only after getting a further representation, he can pass any punishment order. In this case, the punishment imposed by the punishing authority by differing from the view of the enquiry officer in respect of charge No.5 is illegal. 3. The respondents have filed a counter. In the counter, they would only contend that sufficient opportunity were given to the petitioner, he has participated in the enquiry and even the enquiry officer’s report was duly communicated and his explanation was sought for and thereafter only, the punishment was imposed. As per Rule, the punishing authority is empowered to take a different view than that of the conclusion arrived at by the enquiry officer and therefore, the impugned order is justified. 4. The petitioner filed another application in the O.A. No. 8790 of 1998 wherein he seeks a direction to the second respondent to include his name in the panel for promotion to the post of Personal https://hcservices.ecourts.gov.in/hcservices/ Assistant to the Assistant Commissioner/Deputy Commissioner, Civil Supplies Department, issued by the Second respondent dated 12.10.1998, according to the feeder category seniority of the petitioner. In this application, the petitioner would contend that his name was included in the panel during the year 1995 but for want of vacancy, he was not actually promoted. The petitioner had put in 30 years of service. He was due to retire on 31.03.1999. The crucial date is 15th March of each year for promotion to the next higher post. In the subsequent panel drawn for the year 1996 and 1997, due to pendency of charge against him under Rule 17(b), his name was not included. Subsequently, the punishment of censure was imposed on the petitioner on 29.06.1998 and his name was not included for the year 1998. Hence, he challenges that punishment of censure and also non inclusion of his name in the panel for the subsequent years. 5. The respondents have not filed the counter. The learned Government Advocate submits that the petitioner's name was rightly not included in the promotional panel since there was a currency of punishment. Therefore, the petitioner cannot, as a matter of right, seek for promotion to the next higher post. 6. Heard both parties. In so far as O.A. No. 8535 of 1998 (WPNo. 37870 of 2006) six charges were framed against the petitioner out of which the enquiry officer found that charge No.4 alone was held proved and the other charges are not proved. The enquiry officer report was communicated to the petitioner by proceedings Na.Ka.No.A3/27859/96 dated 02.03.1998. After receipt of the enquiry officer's report on 02.03.1998 itself, the petitioner sent a detailed reply stating that charge No.4 which was held proved is not correct. The petitioner also pointed out that he has not recommended for issue of any fictitious card, as alleged. In the last paragraph, the petitioner says that "as the card has been issued to a genuine person it cannot be construed as a bogus card and I have not recommended for issue of any fictitious card. Hence, I request you to drop Charge IV also and exonerate me." In the reply, the petitioner has very categorically answered to the enquiry report in so far as the charge No.4 which was held proved since other Charges were not proved. He has not canvassed anything other than charge No.4. But the disciplinary authority in the impugned order dated 29.06.1998 after extracting all the details regarding the charges, findings and the enquiry report, would state as follows: " I have gone through the charges framed against the delinquent, the explanation of the delinquent, the report of the Enquiry officer and the objections of the delinquent on the Enquiry Officer's report and connected records very carefully. Any lapse committed does not get exonerated merely because the superior officer does not point it out. It is proved that the delinquent did not submit his diary in the prescribed format. The diary should have been submitted by the delinquent in the format prescribed. Further, the delinquent has made https://hcservices.ecourts.gov.in/hcservices/ wrong entries while mentioning the address of the petitioner. It shows his callous attitude towards official duties. However since there is no financial implications, a lenient view is taken and the delinquent is awarded with a "CENSURE" 7. On a reading of the impugned order, it is very clear that the disciplinary authority has taken into consideration the fifth charge for imposing punishment. The 5th charge relates to production of diary in the prescribed format. Unfortunately, the punishment was not given for the proved charge namely charge No.4, whereas the punishment was given for charge No.4 and 5 together. If the disciplinary authority wanted to disagree with the enquiry officer’s report in respect of the Charge No.5, he should have given reason and sent a notice to the petitioner expressing his disagreement to the findings of the enquiry officer relating to 5th charge, but the same was not done by the disciplinary authority. Therefore, the impugned order is against the legal principles. 8. The learned counsel for the petitioner relied upon the decision of the Supreme Court reported in Punjab National Bank v. Sh. Kunj Behari Misra, JT 1998 (5) SC 548, wherein the Honourable Supreme Court has categorically held as follows: "..... When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in karunakar's case (supra). 19.The result of the abovesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary Authority disagrees with the inquiry 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 https://hcservices.ecourts.gov.in/hcservices/ report of the inquiry 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 of the inquiry 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." 9. All it requires for the disciplinary authority was to intimate the delinquent officer that he is disagreeing with the findings of the enquiry officer and should give a opportunity to the petitioner to submit his explanation regarding his disagreement, but it has not been done. Even though the punishment is only censure it has affectted the petitioner's promotion. Inasmuch as the punishment has been imposed by violation of principles of natural justice, even though it was a minor punishment, the impugned order of censure cannot be sustained. 10. Yet another factor to be considered in this case is the petitioner retired on 31.03.1999. Therefore, when the orders of the respondents are set aside on a technical ground namely for non- compliance of principles of natural justice, it has to be considered whether the matter has to be remitted back to the respondents for compliance of the formalities. In this context, in identical case, this Court in the judgment rendered on 28.01.2009 in WP No. 29705 of 2006 held in para-6 as follows:- "6. Normally, when an order is set aside on a technical ground like this, the proper course would be to remit the case back to the authorities for fresh disposal. But I do not propose to adopt the said course in the instant case for the reason that the O.A. Was filed in the year 1997 and the same is disposed of only today that is after about 12 years. Going by the triviality of the charge and other circumstances, at this length of time, if the matter is remitted back to the respondent for passing fresh order, it will surely cause prejudice to the petitioner. The Honourable Supreme Court has held in number of judgments in categorical terms that disciplinary proceedings should not be delayed unnecessarily. Similarly, on the ground of inordinate delay, the disciplinary proceedings have been quashed by the Hon'ble Supreme Court and by this Court. If the proceedings in the instant case are remitted back to the respondent for disposal, at this length of time, surely, it would run counter to the principles laid down by the Hon'ble Supreme Court stated above." https://hcservices.ecourts.gov.in/hcservices/ 11. In this case, inasmuch as the petitioner retired from service way back in the year 1999 and more than 11 years have now lapsed, there is no point in remanding the matter back to the respondent for fresh consideration. Accordingly, the impugned order passed by the second respondent in R.c.No.A3/27859/96 dated 29.06.1998 imposing the punishment of 'Censure' on the petitioner is set aside and WP No. 37870 of 2006 is allowed. No costs. 12. The second writ petition namely WP No. 35755 of 2006 was filed on the ground that even though the petitioner's name was included in the panel for promotion for the year 1995, for want of vacancy his name was not considered. Thereafter, when the panel for promotion was drawn during 1997 and 1998, the petitioner was denied promotion only on the basis of the punishment of censure imposed on him. In view of the fact that the punishment itself has been set aside by this Court, the respondents are directed to consider the claim of the petitioner for promotion from the year 1997 and pass orders on merits and in accordance with law to grant notional promotion from that date, as he has already retired from service on 31.03.1999. Accordingly, WP No. 35755 of 2006 is disposed of. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ogy/rsh To 1. The Commissioner of Civil Supplies & Consumer Protection Department, Chepauk,Chennai – 600 005. 2. The Joint Commissioner I, Civil Supplies & Consumer Protection Department, Chepauk, Chennai – 600 005. 3. The Assistant Commissioner, Civil Supplies & Consumer Protection Department, Ambattur Zone,Chennai – 600 053. 1 cc To The Government Pleader, SR.25419 2 ccs To Mr.S.Vadivelu, Advocate, SR.25030 and 25031 WP Nos. 37870 & 35755/2006 KJI(CO) sra 29/10/2010 https://hcservices.ecourts.gov.in/hcservices/