IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.07.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.8744 of 2009 & M.P.Nos.1 and 2 of 2009 K.Radhakrishnan ..Petitioner Versus 1. The Government of Tamil Nadu, Represented by its Agricultural Production Commissioner, and Secretary to Government, Fort St.George, Chennai – 9. 2. The Commissioner of Agriculture, Chepauk, Chennai – 5. 3. The Secretary, Tamil Nadu Public Service Commission Chennai. ..Respondents (R-3 Impleaded suo motu as per order dated 27.07.2010 in W.P.No.8744 of 2009) PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the records relating to the second respondent in Lr.No.DCS.1/41325/99 (2) dated 16.04.2001 and the consequential show cause notice issued by the first respondent herein in Letter No.34372/AA-2/99-27 dated 17.05.2007 and quash the same and consequently direct the respondents herein to confer the promotion post of Assistant Director of Agriculture on par with the petitioner's juniors by including the petitioner's name in the promotional panel for the year 2006-07 with all attendant and consequential benefits and with due regards to the petitioner's seniority including refixation of pay scales by conferment of special grade scales etc., For Petitioner : Mr.R.S.Anand For Respondents : Mrs.Lita Srinivasan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R The issue lies in a very narrow campus. The second respondent is the Disciplinary Authority. The Disciplinary Authority issued a charge memo, dated, 16.04.2001 under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. The Enquiry was completed in the year 2002. The petitioner was in dark and he was not informed about the result of the enquiry. 2. While so, the first respondent, the Appellate Authority issued a show cause notice, dated 17.05.2007, stating that the first respondent disagreed with the findings of the Enquiry Officer holding that the petitioner was not guilty of the charges and the petitioner was asked to show cause as to why the first respondent could not come to the conclusion that the charges were established. 3. The complaint of the petitioner is two fold and it goes to the root of the matter:- (i) While disagreeing with the findings of the Enquiry Officer and asking the petitioner to submit his explanation on the differing views, the first respondent failed to furnish the enquiry report along with the notice disagreeing with the findings of the Enquiry Officer. (ii) The first respondent is the Appellate Authority. Disciplinary action was initiated by the second respondent. The charge memo was issued by the second respondent. The Enquiry Authority was appointed by the second respondent. In these circumstances, the first respondent, being the Appellate Authority, could not record the disagreement on the findings of the Enquiry Officer and it was for the second respondent either to agree or not to agree with the findings. Only, if the second respondent refused to agree with the findings and recorded his differing views and stuck to his differing views, after obtaining explanation from the petitioner, the second respondent had to impose some punishment. Only, then the first respondent could exercise its jurisdiction on the matter. 4. Even if the Disciplinary Authority differs with the findings of the Enquiry Officer, the Disciplinary Authority is bound to provide a copy of the findings of the Enquiry Officer along with his differed view, when the delinquent is called upon to submit an explanation on his differed views. This is the basic requirement of the principles of natural justice. 5. Further, the learned counsel for the petitioner relies on the following passage of the judgment of this Court in V.Arul Kumar Vs. Housing & Urban Development Corp. Ltd. & Anr. reported in 2009 (3) C.L.T.520. https://hcservices.ecourts.gov.in/hcservices/ "11. In Punjab National Bank v. Kunj Behari Misra, (1998)7 SCC 84 a Bench of this Court considered Regulation 7(2) of the Punjab National Bank Officer Employees- (Discipline and Appeal) Regulations, 1977. The Regulation itself did not provide for the giving of any notice before the disciplinary authority differed with the view of the enquiry officer. This Court held: 'The result of the aforesaid 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 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 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.' " The above passage makes it very clear that the findings of the Enquiry Officer has to be supplied along with the differed views of the Disciplinary Authority. 6. The first respondent being the Appellate Authority, could act only after the Disciplinary Authority took one view or other on the Disciplinary matter and not before that. However, the learned Government Advocate relies on Rule 36 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules and submits that the first respondent has powers to differ with the findings of the Enquiry Officer. 7. I am not in agreement with the submission made by the learned Government Advocate. Rule 36 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, cannot be pressed into service by the first respondent in support of its illegal action. There is no order that needs to be revised, when the first respondent issued the notice. https://hcservices.ecourts.gov.in/hcservices/ 8. However, the first respondent, being the Appellate Authority, could not intervene at this stage affecting the right of appeal provided under the Rules. 9. Hence, the impugned order dated 17.05.2007 of the first respondent is quashed. 10. In normal course, while quashing the order dated 17.05.2007 of the first respondent, I could have directed the second respondent to pass orders, on the findings of the Enquiry Officer holding that the petitioner was not guilty, either accepting the same by dropping the enquiry proceeding or issuing a notice regarding its differing views relating to the findings of the Enquiry Officer. I am not inclined to do this in this case, since the petitioner retires today. Further, the charges relate to the period 1993-94 and the charge memo was issued after 8 years i.e., in 2001. The enquiry was completed in the year 2002. The Enquiry Officer found the petitioner not guilty 8 years back and the second respondent failed to act on the same. Furthermore, action on those who were similarly situated namely, Mr.C.Natesan and Mr.V.Bagathi Perumal, was dropped. In these circumstances, I am inclined to quash the charge memo as well, dated 16.04.2001, of the second respondent. 11. The writ petition is allowed on the above terms. No costs. Consequently, connected M.Ps are closed. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar r n s To 1. The Secretary, Agricultural Production Commissioner, Government of Tamil Nadu, Fort St.George, Chennai – 9. 2. The Commissioner of Agriculture, Chepauk, Chennai – 5. 3. The Secretary, Tamil Nadu Public Service Commission, Chennai. + 1 c.c. to M/s. Anand, Advocate. S.R.No.55804. + 1 c.c. to The Government Pleader. S.R.No.56017. W.P.No.8744 of 2009 AKR (CO) GSK 03.08.2010. https://hcservices.ecourts.gov.in/hcservices/