IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.06.2008 CORAM: THE HON'BLE MR.JUSTICE K.VENKATARAMAN WRIT PETITION NO.26479 OF 2006 M.Khader Mohideen .. Petitioner vs. The Superintendent of Police Nagai Quaid-E-Milleth District Nagapattinam. .. Respondent Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records in PR.No.162/96 dated 21.02.97 on the file of the 1st respondent and quash the same. For petitioner : Mr.K.Venkatramani,Sr.Counsel for Mr.M.Muthappan For respondents: Mr.S.Gopinathan Addl.Govt. Pleader ORDER The petitioner had filed O.A.No.2723 of 1997 before the Tamil Nadu Administrative Tribunal challenging the order of the respondent dated 21.2.1997 imposing punishment of censure. The said O.A. had been transferred to the file of this Court, on abolition of Tribunal and renumbered as W.P.No.26479 of 2006. 2. The short matrix which requires for the disposal of the present writ petition is set out hereunder: The petitioner entered service as Sub Inspector of Police in the year 1966. He was promoted as Deputy Inspector of Police on 1.2.1977. Later, he was promoted as Inspector of Police in the year 1982. When the petitioner was serving as Inspector of Police at Manalmedu Police Station from 5.1.1993 to 21.7.1996, there was an unnatural death of one Malathy and in connection with that, a case in Manalmedu Police Station Crime No.708/93 under section 174 Cr.P.C. was registered on 27.8.1993. The petitioner was proceeded departmentally under Rule 3(a) of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Police Subordinate Services (Discipline & Appeal) Rules, 1955 by the Deputy Superintendent of Police, the then Nagai Quaid-E-Milleth District, now Nagapattinam District for not having obtained the priority letter from the Superintendent of Police for the chemical examiner's report in Manalmedu Police Station Crime No.708/93. The charges were framed against the petitioner in the year 1996, however, the charge memo was served on him only in the year 1997. The petitioner submitted a reply and the Deputy Superintendent of Police accepted the explanation offered by the petitioner and held that the charges against the petitioner were not proved beyond reasonable doubt. He submitted unproved minutes to the respondent on 21.2.1997. While so, the disciplinary authority, viz., the Superintendent of Police, did not agree with the report of the Enquiry Officer and held that the delinquency has been established. The disciplinary authority without opportunity to the petitioner imposed a punishment of censure by an order dated 21.2.1997. The petitioner has preferred an appeal against the punishment to the Deputy Inspector General of Police, however, no orders have been passed. In the meanwhile, based on the punishment imposed, the petitioner has been denied promotion to the post of Deputy Superintendent of Police. Hence, the petitioner was constrained to move the Tribunal for quashing the punishment imposed on him. 3. A reply affidavit had been filed on behalf of the respondent wherein the following facts have been set out: The petitioner had been dealt with a charge under Rule 3(a) of Tamil Nadu Police Subordinate Services (Discipline & Appeal) Rules, 1955 and the Enquiry Officer had sent a report stating that the charges have not been proved. The disciplinary authority, the respondent herein, dissenting with the findings of the Enquiry Officer, awarded a punishment of censure by his proceedings dated 21.2.1997. The disciplinary authority has every right to agree or disagree with the findings of the Enquiry Officer and it is for him either to accept or to deny the findings. The petitioner had been dealt with under Rule 3(a) of Tamil Nadu Police Subordinate Services (Discipline & Appeal) Rules, 1955 based on records and opportunity was given to the petitioner for his reply. No show-cause notice need be issued while imposing punishment. Hence, there is no violation of the principles of natural justice. The order is not mala fide or motivated to prevent the petitioner from being promoted as Deputy Superintendent of Police, as contended by the petitioner. The reasoned order passed by the disciplinary authority does not require any interference by this Court. 4. On the above pleadings, Mr.K.Venkataramani, learned senior counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondent have submitted their respective contentions. https://hcservices.ecourts.gov.in/hcservices/ 5. Mr.K.Venkataramani, learned senior counsel appearing for the petitioner emphasised that the disciplinary authority, if he wants to disagree with the findings of the Enquiry Officer ought to have served show-cause notice on the petitioner explaining why he differs from the report of the Enquiry Officer and calling upon the petitioner to offer his explanation and failure to do so is totally erroneous and such view has been taken not only by this Court, but also by the Hon'ble Apex Court. The learned senior counsel further submitted that the reply affidavit of the respondent stating that no show-cause notice need be issued before imposing the punishment shows that the disciplinary authority was unaware of the law laid down by this Court as well as the Hon'ble Apex Court. Thus, according to the learned senior counsel, the impugned order is liable to be set aside. Further, according to the learned senior counsel, the petitioner was aged about 54 years when he had moved the Tribunal and he would have retired long back and that no useful purpose would be served if the matter is remanded to the authority again for considering the punishment imposed on the petitioner and hence the matter has to be decided by this Court itself. 6. Per contra, the learned Additional Government Pleader appearing for the respondent contended that opportunity has been given to the petitioner before punishment has been imposed and hence, it does not require any reconsideration. 7. I have considered the submissions made by the learned senior counsel for the petitioner and the learned Additional Government Pleader. 8. It is the admitted case that charges were framed against the petitioner on 10.2.1996 and served on him on 10.2.1997. The charge framed against the petitioner, as set out in the reply affidavit, is as follows: "Neglect of duty in having not obtained the priority letter from Superintendent of Police, Nagai Quaid-E-Milleth District for getting Chemical Examiner's report in Manalmedu Police Station Cr.No.708/93, u/s.174 Cr.P.C. registered on 27.8.93". 9. It is not in dispute that seven days time had been granted to the petitioner to put forth his explanation and the Deputy Superintendent of Police accepted the explanation of the petitioner and held that the charges are not proved beyond reasonable doubt and submitted unproved minutes to the respondent on 21.2.1997. However, the respondent, without accepting the enquiry report and without affording an opportunity to the petitioner imposed a punishment of censure by the impugned order and in the appeal preferred by the petitioner before the Deputy Inspector General of Police, no orders have been passed. On the https://hcservices.ecourts.gov.in/hcservices/ above back drop, the question that arises now for consideration is whether opportunity has been given to the petitioner before the punishment being imposed on him. In his original application, the petitioner had taken a definite stand that no opportunity had been afforded to him. In the reply affidavit filed by the first respondent it has been stated that no show-cause notice need be issued before imposing punishment. 10. The learned senior counsel appearing for the petitioner submitted that the respondent, when he differs from the finding of the Deputy Superintendent of Police, should have served a show-cause notice on the petitioner giving reasons as to why he proposes to differ from the findings of the Deputy Superintendent of Police and called upon the petitioner to offer his explanation for the same and then, after considering the explanation, should have passed orders in one way or the other. According to the learned counsel, such procedure has not been followed by the respondent before imposing punishment referred to above. While a specific ground to this effect has been taken in the original application, in reply affidavit no where it has been stated that the respondent had served a show-cause notice on the petitioner giving reasons for differing from the findings of the Deputy Superintendent of Police. When there is no such averment in the reply affidavit, it is presumed that the disciplinary authority had not served any show-cause notice on the petitioner calling upon the petitioner to explain his stand on the differing views of the disciplinary authority. 11. In this connection, the learned senior counsel appearing for the petitioner, drew my attention to the judgement reported in 2006 (3) Andhra Law Times 286 (D.B.) [Narinder Kumar vs. Union of India and others]. Paragraph 30 of the said judgement is usefully extracted hereunder: " 30. It is well settled that while the disciplinary authority is entitled to disagree with the findings of the enquiry officer, he is required to intimate the delinquent employee of the reasons which weighed with him in differing with the conclusions of the enquiry officer and give him an opportunity of submitting his objections thereto. Failure to do so would be in violation of principles of natural justice, which would result in the enquiry proceedings and the order of punishment imposed being vitiated. The contention of Sri R.S.Murthy, learned Standing Counsel for the respondents, based on the judgement of the Supreme Court in Managing Director ECIL. vs. Karunakar (AIR 1994 SC 1074) and State Bank of Patiala v. S.K.Sharma (AIR 1996 SC 1669) that no prejudice was caused to the petitioner, cannot also be accepted. As has been held by the Apex Court in S.K.Sharma (cited supra), the prejudice doctrine has no application in a case where no opportunity or no https://hcservices.ecourts.gov.in/hcservices/ notice was given to the delinquent employee. In the present case the petitioner was not put on notice regarding the Railway Board's tentative disagreement with the findings of the enquiry officer and was denied the opportunity of submitting his objections thereto. Since it is a case of no notice and no opportunity, and falls within the categories excluded in S.K.Sharma (cited Supra), the prejudice doctrine has no application." 12. In yet another decision reported in AIR 1998 SC 2713 [Punjab National Bank and others vs. Kunj Behari Misra] it has been held that if the Enquiry Officer's report is in favour of the delinquent and the disciplinary authority proposing to differ must give opportunity of hearing to the delinquent before recording his conclusion. Paragraph 17 of the said judgement is usefully extracted hereunder: " 17. These observations are clearly in tune with the observations in Bimal Kumar Pandit's case (AIR 1963 SC 1612) quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar's case (1994 AIR SCW 1050) the first stage required an opportunity to be given to the employee to represent to the disciplinary authority even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its finding. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry 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. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority." https://hcservices.ecourts.gov.in/hcservices/ 13. In yet another judgement reported in 2001 (3) Administrative Total Judgements 247 [State Bank of India and others vs. Arvind K.Shukla], the same view had been taken by the Hon'ble Apex Court. Paragraph 2 of the said judgement is usefully extracted hereunder: " 2. Mr.Sundravardan, the learned senior counsel appearing for the State Bank of India contended before us that in the case in hand, in fact, there has been no disagreement with the finding of the enquiring officer by the disciplinary, and on the other hand, the disciplinary authority on the accepted findings of the enquiring officer has recorded his conclusion differently on the basis of the relevant provisions of the Rules, and therefore the question of giving an opportunity to the delinquent that stage does not arise. To appreciate this contention, we have been taken through the findings of the enquiring officer and charges 1(a) and 1(d) as well as the reasonings and ultimate conclusion of the disciplinary authority on these two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer and opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3-Judge Bench decision of this Court in the case of Punjab National Bank & Others vs. Kunj Behari Misra (JT 1998 (5) SC 548). The Bench in the aforesaid case relied upon the earlier decision in the Institute of Chartered Accountants' case JT 1997 (6) SC 607 as well as the Ram Kishan case JT 1995 (7) SC 43 and came to hold that the view expressed in S.S.Kaushal 1995 (5) SLR 18 and M.C. Saxena cases JT 1998 (2) SC 103 do not lay down the correct law. Mr.Sundravardan, however, brought to our notice yet another 3-Judge Bench decision in the case of Union Bank of India v. Vishwa Mohan JT 1998 (3) SC 118 and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in the Punjab National Bank case was not really there before the Court and Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL vs. B.Karunakar (JT 1993 (6) SC 1). In the absence of any contrary decision of a three-Judge Bench https://hcservices.ecourts.gov.in/hcservices/ decision on the question in issue, we are bound by the earlier judgement of this Court in Punjab National Bank case, necessarily, therefore we do not find any merit in this appeal, which stands dismissed." 14. In yet another decision reported in 2006 (9) SCC 440 [Lav Nigam vs. Chairman & Managing Director, ITI Ltd., and another] a similar view has been taken and paragraphs 10 and 12 are usefully extracted hereunder: " 10. 10. The conclusion of the High Court was contrary to the consistent view taken by this Court that 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 proposed. 11. xxxx 12. This view has been reiterated in Yoginath D.Bagdge vs. State of Maharashtra (1999 (7) SCC 739). In this case also Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The Court said: "para 29: But the requirement of 'hearing' in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would be given 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 disciplinary authority, at the same time, has to communicate to the delinquent officer the 'TENTATIVE' reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiry authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with." https://hcservices.ecourts.gov.in/hcservices/ 15. Considering the above facts and circumstances of the case and considering the fact that no show-cause notice was issued to the petitioner before imposing punishment on him and also considering the fact that the disciplinary authority who had proposed to differ from the finding of the Enquiry Officer, had not given any opportunity of hearing to the delinquent, the petitioner herein, before imposing punishment, and also considering the judgements referred to above, I am inclined to set aside the order of the respondent dated 21.2.1997 and the writ petition stands allowed. It is needless to say that the respondent is at liberty to pass orders afresh after following the procedure known to law. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kh To The Superintendent of Police Nagapattinam District Nagapattinam. 1 cc To The Government Pleader, SR.31715. W.P.No.26479 of 2006 RA(CO) RVL 10.07.2008 https://hcservices.ecourts.gov.in/hcservices/