THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.03.2010 CORAM THE HON'BLE MR.JUSTICE T. RAJA Writ petition No. 20279 of 2004 & M.P.No.24407 of 2004 V. Ramanathan .. Petitioner /vs/ 1. The District Collector, Coimbatore District, Coimbatore. 2. The Assistant Director of panchayats, Collectorate, Coimbatore – 18. 3. The Block Development Officer (Panchayats) Block Development Office, Madukarai, Coimbatore District. .. Respondents Prayer: This writ petition filed under Article 226 of the Constitution of India for issuance of writ of Certiorarified Mandamus to call for the records in pursuant to the Impugned Order passed by the 1st Respondent in Proc.Na.Ka.No.1205/02/A3 dated 07.05.2004 and Quash the same and consequently direct the Respondents to allow the Petitioner to retire from service retrospectively with effect from 31.10.2003 and to pay all his terminal and pensionary benefits with full backwages by treating the period of suspension as duty and the arrears of pay and pension and monthly pension. For Petitioner .. Mr. S.M.Subramanian For Respondents .. Mr. B. Vijay (For R1 to R2) Government Advocate M/s.P.S.Sivashanmuga Sundaram https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner is said to have committed various irregularities. Therefore, 11 charges have been framed against the petitioner by the respondent department. The petitioner was also called upon to submit his explanation and after giving his explanation, the respondent department having not satisfied with the written explanation submitted by the petitioner, ordered an enquiry. The department appointed an enquiry officer. The enquiry officer, after giving sufficient opportunity to both sides, submitted his report holding that except charge No. 1, the rest of the 10 charges were not proved. The disciplinary authority, did not accept the findings of the enquiry officer and took a stand differing with the findings of the enquiry officer and came to the conclusion that out of 11 charges levelled against the petitioner, 7 charges were proved. 2. The learned counsel appearing for the petitioner submits that it is settled position of law that if the disciplinary authority takes a view, differing with the findings of the enquiry officer, a notice has to be given to the delinquent employee. In the present case as the disciplinary authority had, without even giving any notice seeking the explanation of the delinquent, proceeded further, it is against the settled legal position and hence, the impugned order is liable to be quashed on that ground. 3. According to the learned counsel for the petitioner, the disciplinary authority is bound to give notice to the delinquent employee before reaching final conclusion after differing from the findings of the enquiry officer. The stand taken by the petitioner is well founded. 4. This Court is also of the view that the proceedings initiated by the respondent department cannot stand to good reason, as it is well settled that if the disciplinary authority differs with the view taken by the enquiry officer, he is bound to give a notice stating his tentative view to the petitioner. It is only after hearing the petitioner, the disciplinary authority can proceed further in passing final order. The principles of natural justice, requires that the authority, who has to take a final decision, can impose a punishment only after giving an opportunity to the delinquent employee charged of misconduct to file his explanation before the disciplinary authority records his findings on the charges framed against him. 5. This is the view of the Supreme Court in Yoginath D. Bagde v. State of Maharashra reported in (1999)7 SCC 739, wherein the Apex Court held as follows:- https://hcservices.ecourts.gov.in/hcservices/ " 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 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 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 enquiring authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with" 6. Admittedly, in this case, the disciplinary authority had not given any notice before taking a different view from the finding of the enquiry Officer. Therefore, this Court has no other option than to interfere with the order under challenge. Accordingly, the impugned order is set aside. By taking into account the entire background of the case, this Court directs the respondent to proceed further by giving notice to the petitioner from the stage at which the enquiry officer submitted his report, seeking an explanation from the petitioner as to why the disciplinary authority should not take a different view and after the submission of explanation by the petitioner, the respondents are entitled to proceed further in accordance with law. 7. It is also brought to the notice that the copy of the enquiry report was not furnished to the petitioner. The petitioner is entitled to have a copy of the enquiry report. The same should be furnished to the petitioner along with the disciplinary authority's notice. The entire exercise shall be completed within a period of six months from the date of receipt of a copy of this order. The writ petition is disposed of with the above direction. Consequently, connected miscellaneous petition is closed. No costs. sms Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The District Collector, Coimbatore District, Coimbatore. 2. The Assistant Director of panchayats, Collectorate, Coimbatore – 18. 3. The Block Development Officer (Panchayats) Block Development Office, Madukarai, Coimbatore District. + 1 cc to M/s.P.S.Sivashanmuga Sundaram, Advocate SR No.20186 + 1 cc to M/s.S.M.Subramaniam, Advocate SR No.19693 + 1 cc to Government Pleader, SR No.19870 RV(CO) SR/15.4.2010 W.P.No. 20279 of 2004 https://hcservices.ecourts.gov.in/hcservices/