w w w . L a w y e r S e r v i c e s . i n



L. Anand v/s The Secretary to Government, Transport Department & Others

    W.P.No.747 of 2007

    Decided On, 12 April 2010

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR

    For the Petitioner: Anand for M/s.Anand and Surya for R. Tholkappian, Advocates. For the Respondents: R1, R. Neelakandan, Government Advocate, R2 & R3, Vijayan, for G. Sankaran, Advocates.



Judgment Text

(PRAYER : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ of certiorarified mandamus calling for the records relating to the third respondent in F.O.No.016111/DL6/SETC/2003 dated 17.2.2005 and the consequential order passed in appeal by the second respondent herein which was communicated by the third respondent in Letter No.86/25177/DL6/SECTC/05, dated 20.7.2006 and the order passed in review petition by the first respondent herein which was communicated by the third respondent herein in letter No.86/25177/DL6/SETC/05, dated 10.11.2006 and quash the same and consequently direct the respondents to reimburse the reduced pay and to refix the petitioner's pay scales and confer all monetary and consequential benefits including the promotion post of managerial cadre on par with petitioner's juniors and disburse arrears of salary.


The prayer in the writ petition is to quash the order of the third respondent dated 17.2.2005 which was confirmed in appeal by the second respondent and communicated by the third respondent in letter dated 20.7.2006 and the order passed by the first respondent in review petition, which was communicated by the respondent by letter dated 10.11.2006 and direct the respondents to reimburse the reduced pay and refix the petitioner's scale of pay and confer all monetary and consequential benefits including promotion on par with his juniors and disburse the arrears of salary.


2. The facts in nutshell for disposal of this writ petition are as follows:


(a) The petitioner joined the services of the then Pallavan Transport Corporation (Express Wing), a State owned Transport Corporation, as Assistant Manager on 20.9.1976 and was promoted as Deputy Manager on 20.9.1982. The petitioner was further promoted as Senior Deputy Manager on 14.4.1993 and he worked as General Manager in various stations. Petitioner retired from service on 30.6.2006, while working in the State Express Transport Corporation.


(b) When the petitioner was working as General Manager (Technical) in the erstwhile Annai Sathya Transport Corporation (ASTC), a charge memo was issued on 21.3.2003 as if the petitioner had violated the instructions of the Government while depositing the Motor Accident Claims Tribunal award amounts and the same is a misconduct under Rule 28(1) of the Conduct Rules of the Common Service Rules of the Corporation.


(c) On receipt of the charge memo, petitioner submitted his explanation by stating that at that time, the petitioner acted as Member of the Motor Accident Claims Tribunal sub-Committee and three other persons were also charged with the same charges.


(d) The explanation submitted by the petitioner was not found acceptable, hence an enquiry was conducted. The Enquiry Officer found that the charges are proved. Thereafter a show cause notice was issued on 27.4.2004 with regard to the proposed punishment of reduction in basic pay at Rs.12,000/- from the present basic pay of Rs.15,750/- for three years. Petitioner submitted his reply on 22.6.2004. Copy of the enquiry report was also enclosed with the said notice. Third respondent without considering the reply imposed the punishment of reduction in basic pay by fixing the basic pay at Rs.12,000/- from the present basic pay of Rs.15,750/- for one year by order dated 7.3.2005.


(e) Aggrieved by the said order of punishment, petitioner preferred appeal before the second respondent on 28.3.2005. The said appeal was rejected by a non-speaking order and the same was communicated by the third respondent on 20.7.2006. Thereafter petitioner filed a review petition before the first respondent on 14.8.2006, which was also rejected on the ground that after expiry of six months review petition cannot be entertained. The said decision of the first respondent was communicated by the third respondent on 10.11.2006.


(f) The said orders of the respondents are challenged in this writ petition on the ground that four officials were involved in the same occurrence and the highest Officer being the Managing Director, against whom disciplinary action can be taken only by the Government, the charge framed by the Corporation is without jurisdiction; that the petitioner having not violated any of the Government instructions and as there is no requirement to get prior approval of the Finance Committee before depositing the award amount, the charge itself is baseless; that taking note of the urgency in satisfying the decree amount, when execution petition was filed, the amount was deposited and subsequently sought for ratification from the Finance Committee and the said procedure was followed only to avoid attachment of the Corporation properties in execution proceedings; that the findings of the Enquiry Officer is baseless and therefore the order passed on the basis of the said Enquiry Officer's findings cannot be sustained; that the procedure followed by the third respondent in issuing final show cause notice before accepting the findings of the Enquiry Officer is in violation of the principles of natural justice; that the impugned punishment was given without recording the findings of guilt by the disciplinary authority and as such the order of punishment is without any application of mind; that for the same allegation Chief Accounts Officer was proceeded and in the appeal the said punishment was modified for six months instead of one year; that the Appellate Authority has not passed any speaking order; that the review petition having been filed on 14.8.2006, after communication of the order passed in appeal on 21.7.2006, the same is within the time and the Government ought not to have rejected the review on the ground of delay; and that, no motive is attributed against the petitioner and the petitioner having acted in good faith to protect the interest of the Corporation, no misconduct warranting disciplinary action can be attributed against the petitioner.


3. The third respondent filed counter affidavit stating that the petitioner, while working as General Manager in the erstwhile Annai Sathya Transport Corporation, had remitted the amount to satisfy the award amount without following the instructions of the Government. Petitioner being a member of the sub-Committee, should have followed the instructions of the Government and as per the instructions issued by the Government in letter dated 5.7.2002 prior approval of the Finance Committee/Board should have been obtained for making payment. As the petitioner had not obtained prior approval, the petitioner was issued with charge memo and after conducting enquiry, punishment of reduction in basic pay for one year was imposed, which was also confirmed in appeal. The review petition having been filed after the prescribed time limit, the same was rejected as time barred. There is no procedural violation in passing the order of punishment. Petitioner having violated the procedures is not entitled to challenge the order of punishment.


4. Heard the learned counsel for the petitioner as well as the respondents.


5. From the above pleadings, the following points arise for consideration in this writ petition:


(i) Whether the charges framed against the petitioner by memo dated 21.3.2003 are maintainable?


(ii) Whether the Enquiry Officer is justified in giving a finding with regard to the proof of charges?


(iii) Whether the disciplinary authority is justified in accepting the Enquiry Officer's report before serving the same to the petitioner and getting his remarks about the findings?


(iv) Whether the Disciplinary Authority is bound to record his own reasons with regard to the findings of guilt while imposing punishment?


(v) Whether the appellate authority is bound to give reasons while rejecting the appeal filed by the petitioner?


(vi) Whether the Government is justified in dismissing the review petition on the ground of delay?


Issue No.(i) Whether the charges framed against the petitioner by memo dated 21.3.2003 are maintainable?


6. The charges framed against the petitioner by memo dated 21.3.2003 read as follows:


"1. Before taking a decision, you have to follow the instructions, if any available at the time of taking a decision. You are one of the Committee members suggested to settle the award amount without following the instructions of the Government. It shows your gross negligence on your part resulting in inconvenience to the Corporation which is a misconduct under rules 28(1) of the Conduct Rules of the Common Service Rules of this Corporation.


2. As per the instructions of the Government letter dated 5.7.2002 prior approval of the Finance Committee/Board should be obtained for making payment. But you have not followed the above instructions. Hence you have breached the above instructions, which is a misconduct under rule 28(r) of the Conduct Rules of the Common Service Rules of this Corporation."


7. In the said charge memo it is stated by the third respondent that legal opinions have been obtained from the Standing Counsels of the Tamil Nadu State Transport Corporation (Salem Division-II) at Krishnagiri and High Court, Madras and both the Advocates have opined "not fit case for appeal". Hence it was decided to remit the award amount with interest and cost in M.C.O.P.Nos.805 of 2000, 1085 of 2000 and 263 of 2001 on the file of Additional District Judge Court-II, Krishnagiri, for a sum of Rs.4,08,000/-, Rs.4,00,000/-; and Rs.7,34,706/- with 9% interest from 21.11.2001, 25.1.2002 and 15.4.2002 respectively and cost of Rs.14,354/- in M.C.O.P.No.805 of 2000 and Rs.21,083/- in M.C.O.P.No.263 of 2001 was ordered to be paid and place the subject in the ensuing Finance Committee/Board for approval. It is further stated in the charge memo that in the meantime the Motor Accident Claims Tribunal passed an order in the execution petition filed by the claimants to attach the Corporation properties. In view of the same, the subject was discussed by the sub-Committee and after discussion it was decided to settle the award amounts and get ratification from the Finance Committee/Board later. Based on the said decision taken in the sub-committee, award amount with interest and cost have been remitted in the Tribunal on 19.11.2002, 4.12.2002 and 11.12.2002. Similarly in M.C.O.P.No.37 of 1996, the Tribunal at Dharmapuri passed an award for a sum of Rs.4,55,000/- with interest at the rate of 9% from 31.7.1995 till the date of settlement with cost of Rs.15,491.50. For the said award also legal opinion was obtained from both the Counsels at Dharmapuri and High Court, Madras and both the advocates have opined, "not fit case for appeal". However, the Committee has decided that appeal against the order of the Tribunal may be filed before the High Court and ratification may be obtained from the Finance Committee/Board, based on which an appeal was filed in time. In the meanwhile, the Tribunal in the execution proceedings ordered attachment of the Corporation property and therefore the sub-committee decided to settle the matter to avoid the attachment and to get ratification from the Finance Committee/Board. Based on the above decision award amount with interest and cost to the tune of Rs.7,44,368/- was deposited on 20.11.2004 in the Motor Accident Claims Tribunal, Dharmapuri, with further prayer to retain the amount in the Court account till further directions are obtained from the High Court, Madras.


8. The above four cases have been placed before the Finance Committee meeting held on 3.12.2002 and in the Board meeting held on 26.12.2002, for ratification. The Board in Resolution No.113/2002-2003 resolved not to ratify the action of the Managing Director in having deposited the amount without prior approval of the Finance Committee/Board and further resolved to prefer appeal in all the four cases, based on which appeals have been filed before the High Court, Madras. It is stated in the charge memo that on the basis of the above decision of the Board not to ratify the action of the petitioner in depositing the amount without prior approval, the said charges were framed.


9. The petitioner submitted his explanation to the third respondent on 10.4.2003 stating that in all the four cases orders have been passed in execution petitions and therefore the petitioner was left with no option except to deposit the award amount and in all cases the Legal Advisors gave opinion as, "not fit case for appeal" and only in one case appeal was filed. In the meanwhile orders were passed in the execution proceedings.


10. Petitioner in his explanation further stated that only to avoid attachment of the Corporation properties, with bona fide intention the sub-Committee decided to deposit the amount so as to safeguard the image of the Corporation, failing which the attachment of the Corporation's properties would have be given effect, which will spoil the image of the Corporation through TV news channels and Newspapers. It is further stated that as a sub-Committee member, petitioner acted for the best interest of the Corporation and therefore the charges framed may be dropped. Petitioner further stated, no other dereliction of duty was found against him or any charge memo was issued to him at any point of time.


11. Order XXI Rule 1 CPC states that all money payable under a decree shall be paid to the decree-holder by deposit into the Court or out of Court to the decree-holder or otherwise and if the amount is paid or deposited interest, if any, shall cease to run from the date of such payment/deposit. Thus, the petitioner only safeguarded the interest of the Corporation. It is also worthwhile to notice in this case that the respondents have attributed no motive against the petitioner for depositing the award amount in Courts.


(a) In the decision reported in (1999) 7 SCC 409 (Zunjarrao Bhikaji Nagarkar v. Union of India), the Supreme Court considered similar issue and held that negligence in exercising quasi-judicial power by mere carelessness or inadvertence or omission is not sufficient to initiate proceedings under misconduct. Unless there is a culpable negligence or ill-motive, no charge could be framed. In paragraphs 43 and 44, the Supreme Court held as follows:


"43. If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi-judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.


44. Considering whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. The charge of misconduct against him was not proper. It has to be quashed."


(b) In the decision reported in 2007 (3) LLN 106 = (2007) 4 SCC 566 (Inspector Prem Chand v. Government of N.C.J. of Delhi) following the earlier decisions, the Supreme Court held that the acts of negligence, error of judgment or innocent mistake, do not constitute misconduct. In the above case, the appellant/Police Officer failed to seize the tainted money on receipt of complaint of alleged demand of bribe by an Inspector (Malairiya). Department initiated disciplinary proceeding on the charge that he had not seized the tainted money, which could be an important piece of evidence in criminal proceeding. The Supreme Court held that the Police Inspector could not be said to have committed any misconduct merely because in the opinion of the higher authorities he ought to have seized the tainted money. The Supreme Court in paragraphs 10 to 12 dealt with the term misconduct, which reads as follows:


"10. In State of Punjab v. Ram Singh, Ex-Constable (1999 (2) LLN 419) it was stated, in para.5, at page 422:


?isconduct has been defined in Black?s Law Dictionary , 6th Edn. at p.999, thus:


?A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.?


Misconduct in office has been defined as:


?Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.?


11. In P.Ramanatha Aiyar?s Law Lexicon, 3rd Edn., at p.3027, the term ?misconduct? has been defined as under:


?The term ?misconduct? implies a wrongful intention, and not a mere error of judgment.


Misconduct is not necessarily the same thing as conduct involving moral turpitude.


The word ?misconduct? is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct.?


(See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju (2006 (2) LLN 54))


12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J.Ahmed ((1979) 2 SCC 286) whereupon Mr Sharan himself has placed reliance, this Court held so stating:


?Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster 17 Q.B.536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers (1959(1) W.L.R.698)). This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur (61 B.L.R. 1569) and Satubha K. Vaghela v. Moosa Raza (10 G.L.R. 23). The High Court has noted the definition of misconduct in Strouds Judicial Dictionary which runs as under:


?Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct?.?


(emphasis supplied)


(c) A Division Bench of this Court in the decision reported in 1999 (2) LW 174 (A.M.Sankaran v. The Registrar, High Court, Madras), quashed an order of compulsory retirement passed against the judicial officer for destroying the seized spirit without examining or recording any evidence regarding the inflamable nature of the spirit. This court held that the said order having been passed during discharge of the function as judicial officer, framing such charge without any allegation or recklessness or abuse of power, cannot be sustained.


(d) The above said decisions were followed by me in the decision reported in (2008) 3 MLJ 766 (S.Muthuramu v. State of Tamil Nadu) and quashed the disciplinary proceeding initiated against an Additional Special Deputy Collector (Stamps).


12. From the perusal of the charge memo and explanation submitted by the petitioner and on the basis of the materials available in this case and applying the decisions referred above to the facts of this case, I am of the firm view that issue No.(i) has to be answered in favour of the petitioner.


Issue No.(ii) Whether the Enquiry Officer is justified in giving a finding with regard to the proof of charges?


13. On a perusal of the Enquiry Officer's report it is seen that the explanation given by the petitioner on 11.4.2003 alone is relied on. The plea of the petitioner that he has acted bona fidely and that only to avoid attachment of the Corporation properties the award amounts were deposited, has not been considered. The Enquiry Officer proceeded on the basis that the petitioner has accepted the guilt and therefore gave a finding to the effect that the charges are proved. The said finding given by the Enquiry Officer is based on no evidence and therefore the same is to be treated as perverse finding.


14. How the Enquiry Officer shall conduct enquiry and his importance in disciplinary proceeding are clearly laid by the Supreme Court in several cases.


(i) In the decision reported in 2009 (1) Supreme 438 : (2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank and Others) it is held that departmental proceeding being a quasi judicial proceeding, the charges levelled against the delinquent officer must be found to have been proved. Paragraphs 14 & 23 of the said judgment (in SCC) are extracted hereunder,


"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.


23. ................ A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."


(Emphasis Supplied)


(ii) In the decision reported in (2010) 2 SCC 772 (State of U.P. v. Saroj Kumar Sinha) in paragraphs 28 to 30 it is held thus,


"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department /disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. ..............


29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.


30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."


(Emphasis Supplied)


(iii) Same is the view taken by the Supreme Court in the decision reported in AIR 1984 SC 505 : (1984) 1 SCC 1 (Glaxo Laoratories (I) Ltd. v. Presiding Officer) and AIR 1984 SC 1361 : (1984) 3 SCC 316 (A.L.Kalra v. Project & Equipment Corporation).


15. On the perusal of the Enquiry Officer's report and the conclusions arrived at and on comparison of the findings with the principles stated in the above referred decisions and as there is violations in the decision making process, the Enquiry Officer's findings is declared as perverse as it is based on no evidence.


Issue No.(iii) Whether the disciplinary authority is justified in accepting the Enquiry Officer's report before serving the same to the petitioner and getting his remarks about the findings ?


16. In this case, it is not in dispute that the Disciplinary Authority is not the Enquiry Officer. Petitioner was issued with final show cause notice on 27.4.2004 to explain as to why the proposed punishment of reduction in pay for three years shall not be imposed. Along with the said notice, Enquiry Officer's report was also enclosed. The said action of the third respondent makes it abundantly clear that the Enquiry Officer's finding has been accepted by the Disciplinary Authority even without serving a copy to the petitioner as well as his remarks about the report. Thus there is violation of the principles of natural justice.


17. The importance of serving enquiry report and getting remarks of the Delinquent Officer before its acceptance by the Disciplinary Authority was considered by the Constitution Bench of the Supreme Court in the decision reported in (1993) 4 SCC 727 (Managing Director, ECIL v. B.Karunakar). In paragraphs 26 and 27 the Constitution Bench held thus,


"26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officers findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.


27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer?s report and the delinquent employee?s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee?s right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings."


(Emphasis Supplied)


18. The non-communication of the enquiry report, before it was accepted by the third respondent, prejudice the rights of the petitioner. If the petitioner was served with the enquiry report, he could have pointed out that the Enquiry Officer's report is based on no evidence and about the non-consideration of the fact of absence of motive in depositing the award amount. It is well settled in law that if the employee is able to establish the prejudice due to the non-serving of enquiry report before it was accepted by the disciplinary authority, the same would be in violation of the principles of natural justice. It is the case of the petitioner that only one witness was examined by the Enquiry Officer viz., P.Kannaiyan, who was not examined in his presence and not even the copy of his statement was furnished to the petitioner and hence he could not cross examine the said witness. All these illegalities could have been pointed out to the third respondent before accepting the enquiry report.


19. Thus, issue No.(iii) is decided in favour of the petitioner holding that the third respondent is not justified in accepting the Enquiry Officer's report before getting remarks from the petitioner.


Issue No.(iv) Whether the Disciplinary Authority is bound to record his own reasons with regard to the findings of guilt while imposing punishment?


20. In the reply to the show cause notice the petitioner pointed out that the amounts were deposited on compelling reasons without any motive and only to safeguard the interest of the Corporation, however, the same was not considered by the Enquiry Officer and therefore the Enquiry Officer's findings is perverse. The third respondent imposed the punishment of reduction in the basic pay of the petitioner for one year based on the said erroneous findings without independently applying his mind.


21. The Common Service Rules Chapter V, Rule 6, sub-rule (14) reads as follows,


"The authority competent to impose the penalty shall, if it is not the Inquiring Authority, consider the report of inquiry and record its findings on each charge."


Thus, there is mandatory requirement on the part of the third respondent to independently apply his mind and record his own findings on the basis of which the charges are proved.


22. A bare reading of the order of the third respondent reveals that the third respondent except narrating the framing of charges, conduct of enquiry, issuing of show cause notice and the receipt of reply from the petitioner, has not chosen to state as to how the charges levelled against the petitioner are proved, whether the findings of the Enquiry Officer is based on acceptable evidence, whether non-serving of Enquiry Officer's report before it was accepted and issuing of show cause notice are in violation of the principles of natural justice. The third respondent in the punishment order dated 17.2.2004 merely stated that the explanation submitted is neither satisfactory nor acceptable, however, on humanitarian grounds, provisional penalty is reduced by fixing the basic pay of the petitioner at Rs.12,000/- from the present basic pay of Rs.15,735/- for one year, in the time scale of pay of Rs.12,000-375-16,500. Thus, the order passed by the third respondent is vitiated on non-application of mind. The third respondent while agreeing with the Enquiry Officer's report though need not elaborately give a finding in the light of the reply submitted by the petitioner to the show cause notice pointing out the defects while conducting enquiry, perversity in the finding, etc., the same should have been answered by the third respondent so that the appellate authority and this Court could have verified whether the same is sustainable or not.


23. In the decision reported in (2010) 2 SCC 497 (G.Vallikumari v. Andhra Education Society and Others) in paragraphs 19 and 20 held thus,


"19. In his order, the Chairman of the Managing Committee did refer to the allegations levelled against the appellant and representation submitted by her in the light of the findings recorded by the enquiry officer, but without even adverting to the contents of her representation and giving a semblance of indication of application of mind in the context of Rule 120(1)(d)(iv) of the Rules, he directed her removal from service. Therefore, there is no escape from the conclusion that the order of punishment was passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognised facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned.


20. A careful reading of the Tribunal's order shows that though it did not find any procedural infirmity in the enquiry against the appellant, the order passed by the Chairman of the Managing Committee was nullified only on the ground of violation of Section 8(2) of the Act read with Rule 120(2) of the Rules inasmuch as permission of the Director was not obtained before removing the appellant from service. The High Court set aside the order of the Tribunal and indirectly restored the order passed by the Chairman of the Managing Committee because it was of the view that Section 8(2) is not applicable to the minority institutions. Neither the Tribunal nor the Division Bench of the High Court dealt with and decided the appellant's challenge to the findings recorded by the enquiry officer and her plea that the extreme penalty of removal from service imposed on her was not justified because she was not found guilty of any serious misconduct."


Thus, the order passed by the third respondent imposing punishment against the petitioner is not valid.


Issue No.(v) Whether the appellate authority is bound to give reasons while rejecting the appeal filed by the petitioner?


24. The petitioner rightly filed appeal against the order of the Disciplinary Authority on 28.5.2005 before the second respondent which was also rejected without stating any reason and the said order was communicated vide letter dated 20.7.2006, which reads as follows:


"The Board of Directors of State Express Transport Corporation Tamil Nadu Ltd., in the 140th meeting held on 30.06.06 after a detailed discussion resolved to reject your appeal petition in respect of disciplinary action taken against you."


The procedure to be followed by the appellate authority as per the Common service Rules is found in Rule 20. Rule 20(v) is relevant which reads thus,


"The appellate authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders within three months of the date of receipt of the appeal. ......."


In the absence of specific rule, it is open to the appellate authority to plead that if the order of the Disciplinary Authority is concurred, no further reason need be given. However, in this case a specific rule is available. The petitioner also pleaded before the second respondent that only with good intention the award amounts were deposited to avoid the Corporation getting a bad name, and during 30 years of his service, he served without any blemish. All these facts are available in the memo filed in the appeal dated 28.3.2005.


25. As stated supra, the appellate authority failed to follow the above statutory rule while disposing of the appeal and has passed a non-speaking order. Hence the order of the appellate authority is also unsustainable.


26. How the appellate authority shall consider the appeal and pass orders in appeal is decided by a Division Bench of this Court (S.J.Mukhopadhaya, J. (as he then was) and N.Paul Vasanthakumar, J.) in the decision reported in 2008 WLR 86 (The Joint Commissioner of Police & Another v. G.Anandan). In paragraphs 10(a), 11 and 13, the Division Bench held thus,


10. (a) Similar issue with regard to Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, was considered by a Division Bench of this Court in the decision reported in (1983) 2 MLJ 513 (G.Srinivasan v. The Government of Tamil Nadu, represented by the Commissioner and Secretary to Government, Revenue Department, Madras-9 and others) and in paragraph 8 the Division Bench held as follows:


"8. Coming to the second question as to whether the Board of Revenue has acted in accordance with rule 23 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, we feel that the Board of Revenue has not kept in mind the requisites necessary, under rule 23. The order of the Board of Revenue dismissing the appeal has been extracted above. The order does not give any reason as to why it confirmed the order of dismissal except saying that it did not see any reason to interfere with the order of the Collector. We are of the view that having regard to the language used in rule 23, the dismissal of the appeal by the Board of Revenue is not a proper disposal as contemplated by rule 23. Rule 23 provides as to what the appellate authority should do while considering the appeal filed by a delinquent officer against the penalty imposed on him. Rule 23(1) gives a mandate to the appellate authority to consider: (a) whether the facts on which the order was passed have been established; (b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate. Thus it is clear from the perusal of rule 23 that the appellate authority is enjoined to consider whether the facts on which the order of dismissal was passed had been established and the facts established afford sufficient grounds for taking action and whether the penalty is excessive or adequate. Rule 23 directs the appellate authority to consider certain matters before passing the appellate order. The order of the appellate authority must therefore ex facie show that the matters referred to in rule 23 have been considered by the appellate authority before it passed its order. In this case, the order of the appellate authority merely says that it sees no reason to interfere with the order of the Collector and it does not indicate that it took all the matters referred to in rule 23 into consideration before rejecting the appeal. Obviously, the appellate authority the Board of Revenue in this case, appears to have overlooked the criteria referred to in rule 23, as otherwise, it would have at least referred to the relevant matters contained in rule 23 in its order. Dealing with this ground of attack, Mohan, J., has stated that according to the recent trend of opinion, if the appellate authority confirms the order in appeal, the appellate authority need not give reasons. It may be that in a case where there is no statutory provision dealing with the exercise of power by the appellate authority we have to fall back to the general principle as to whether the appellate authority is found to give reasons for his affirmation of the order of dismissal; but where the power of the appellate authority is circumscribed by a statutory provision such as rule 23 as in this case, the appellate authority should act within the confines of that rule and he cannot pass an order arbitrarily without considering the matters referred to in rule 23. We are therefore of the view that the order of the Board of Revenue, dated 4th September, 1976, stands vitiated for violation of Rule 23. On this ground, the order of the Board of Revenue which confirms the orders of dismissal passed against the appellant will stand quashed and the Board of Revenue has to pass a fresh order on the appeal filed by the appellant which should be treated as pending."


(b) The Supreme Court in the decision reported in AIR 1986 SC 1040 = (1986) 2 SCC 651 (R.P.Bhat v. Union of India) considered similar provision i.e, Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In paragraphs 3 to 5 the Supreme Court held thus:


"3. Having heard the parties, we are satisfied that in disposing of the appeal the Director General has not applied his mind to the requirements of Rule 27(2) of the Rules, the relevant provisions of which read as follows:


?27. (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said Rules, the appellate authority shall consider:


(a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;


(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and


(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;


and pass orders -


(i) confirming, enhancing, reducing, or setting aside the penalty; or


(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.?


4. The word ?consider? in Rule 27(2) implies ?due application of mind?. It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.


5. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside."


The above decision was followed by the Supreme Court in its latter judgment reported in (2006) 4 SCC 713 Narinder Mohan Arya v. United India Insurance Company Limited & Others).


(c) Another Division Bench of this Court in 2004 (3) LW 32 (M.Nagarajan & Others v. The Registrar, High Court, Madras-600 104 and another) following

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the above referred decision in AIR 1986 SC 1040 (cited supra), set aside the order of the appellate authority for non-compliance of Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and remitted the matter back to the appellate authority to pass fresh orders by following the said rules. 11. In the light of the above decisions and having regard to Rule 6(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, quoted above to be followed in this case by the appellate authority, the order of the appellate authority cannot be sustained. ........... 13. In the result, we set aside the order of the appellate authority dated 12.8.2006 and remit the matter to the first appellant herein to pass fresh orders following Rule 6(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, within a period of four weeks from the date of receipt of copy of this order. The order of the learned single Judge is set aside." In the above cited decision viz., (2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank and Others) in paragraph 23 the Supreme Court held that if orders of the Disciplinary Authority and the Appellate Authority affect the civil rights of the employee, reasons must be stated for arriving at the decisions. Thus, the order of the appellate authority is unsustainable. 27. In this case the petitioner has already retired from service on 30.6.2006. Further, in view of the findings given by me for Issue Nos.(i) to (iv), I am not inclined to remand the case to the second respondent for passing fresh orders in the appeal. Issue No.(vi) Whether the Government is justified in dismissing the review petition on the ground of delay ? 28. Petitioner filed review petition before the first respondent as contemplated under Rule 23 of the Common Service Rules, which reads as follows, "Notwithstanding anything contained in these Rules, the Managing Director or the Appellate Authority (hereinafter referred to the "Reviewing Authority") may call for the record of the case within six months of the date of the final order and after reviewing the case pass such orders thereon as it may deem fit. ........." The said review petition filed by the petitioner was rejected by stating two reasons viz., the Government have no role to review the petition and the review has been filed after six months, which is beyond the time fixed under Rule 23 of the Common Service Rules. 29. Rejection of review petition filed by the petitioner on 14.8.2006 by order dated 12.11.2006 on the ground of delay cannot be sustained since the order was passed in the appeal only on 30.6.2006 in the 140th Board of Directors Meeting. The review petition having been filed on 14.8.2006, the same is within six months. Therefore rejection of review petition by the Government on the ground of delay is unsustainable as it has been passed without application of mind as it is passed without even looking into the date of the order of the second respondent as well as the filing date of review by the petitioner. Issue No.(vi) is also decided in favour of the petitioner. 30. It is not stated by the third respondent or by the second respondent/appellate authority that the petitioner acted with any motive. Throughout the plea of the petitioner is that he has acted bona fidely to protect the interest of the Corporation and deposited the award amount to avoid attachment of the Corporation's property in execution proceedings. In short, the petitioner acted without any iota of ill-will or motive and complied with the order passed by a competent Court/Tribunal. 31. For satisfying the Court decree/award, no Officer could be proceeded with, unless motive or some personal gain is alleged against the said Officer. As stated supra, legal opinions were also obtained before depositing the amount. The Enquiry Officer and all the respondents failed to consider the said aspect even though the petitioner repeatedly pleaded to that effect. Instead of appreciating the said stand of the petitioner, Enquiry Officer has erroneously given a finding that the petitioner admitted the delinquency and held that the charges are proved. The third respondent, namely the Disciplinary Authority and the second respondent, namely the appellate authority also erroneously failed to consider the said aspect. Non-consideration of relevant matters by the decision making authority vitiates the decision making process and ultimately the decision itself. 32. Taking note of all the above facts and having regard to the unblemished record of the petitioner, who had retired from service as early as on 30.6.2006, the impugned orders are set aside and the respondents are directed to pay the difference in salary to the petitioner which was reduced pursuant to the impugned orders. The respondents are directed to pay all consequential benefits to the petitioner by considering the same in accordance with law, within a period of eight weeks from the date of receipt of copy of this order. No costs.
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