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P. Swamikannu v/s The State of Tamil Nadu Rep.by the Superintendent of Central Prison Vellore & Another

    W.P.No.11712 of 2007, (O.A.NO.2113 of 2002)

    Decided On, 03 November 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN

    For the Petitioner: K. Venkatramani, Senior Counsel for T. Ayngaraprabhu, Advocate. For the Respondents: V. Subbiah, Special Government Pleader.



Judgment Text

(Prayer: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.2113 of 2002 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for and to set aside the impugned order of the 1st respondent in proceedings No.6326/KeSeVu/89 dated 19.01.2002.)

1. Heard both sides.

2. The petiti

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ner was employed as Grade-II Warder in the Central Prison, Cuddalore. A charge memo dated 22.09.1998 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued to the petitioner alleging that on 18.04.1987 while he was in service, he reported to duty 25 minutes belatedly and also that he used abusive language against the Department as well as the high officials. The petitioner filed Original Application in O.A.No.318 of 1999 before the Tamil Nadu Administrative Tribunal seeking to quash the aforesaid charge memo dated 22.09.1998 and also obtained stay of further proceedings. Ultimately, the Tribunal passed an order dated 08.11.2001 in O.A.No.318 of 1999 holding that the charge memo dated 22.09.1998 served on the petitioner shall be deemed to have been issued under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The petitioner submitted his explanation denying the allegations. However, the first respondent passed the impugned order dated 19.01.2002 imposing the punishment of increment cut for a period of six months without cumulative effect. Challenging the same, the petitioner filed Original Application in O.A.No.2113 of 2002 before the Tamil Nadu Administrative Tribunal.3. The respondents filed reply affidavit refuting the allegations. On abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.11712 of 2007.4. The learned Senior Counsel for the petitioner submits that the first respondent passed the impugned order relying on certain statements that were obtained from the co-employees of the petitioner on 19.04.1987 behind the back of the petitioner and those statements were not furnished to the petitioner and the petitioner was not even given an opportunity to cross examine those persons. Since the first respondent relied on those statements for imposing the punishment, the impugned order is bad, illegal and violative of the principles of natural justice.5. On the other hand, the learned Special Government Pleader sought to sustain the impugned order based on the reply affidavit filed by the respondents.6. I have considered the submissions made on either side and perused the materials available on record. Para 5 of the impugned order is extracted hereunder:VERNACULAR (TAMIL) PORTION DELETED7. As rightly contended by the learned Senior Counsel for the petitioner, the impugned order was passed based on the statements recorded from the co-employees of the petitioner on 19.04.1987. Disciplinary proceedings was initiated under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. It is a different matter if the first respondent passed the punishment order based on the explanation of the petitioner. However, the first respondent relied on certain statements of the co-employees, which were obtained behind the back of the petitioner. In that event, the first respondent ought to have conducted the enquiry, even though it is a proceedings under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. In my view, when the first respondent relied on certain statements of the witnesses, those persons should have been examined in the presence of the petitioner and he should have been given opportunity to cross examine them. Relying the statements of the persons, without subjecting them to cross examination, is violative of principles of natural justice. Hence, the impugned order is liable to be quashed and accordingly, the same is quashed.8. The writ petition is allowed to the extent indicated above. No costs.
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