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



M. Muthu Anand v/s Principal Secretary and Secretary to Government, Home (Transport) Department, Chennai & Another

    W.P. No. 2456 & 12108 of 2010

    Decided On, 07 February 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S. MANIKUMAR

    For the Petitioner: K. Venkataramani, Senior Counsel for M. Muthappan, Advocate.For the Respondents: Ms. Lita Srinivasan, Government Advocate.



Judgment Text

1. During the tenure of the petitioner as Regional Transport Officer, Virudhunagar, a surprise inspection was conducted by one Thiru. R. Thomas, an Assistant attached to the office of the Deputy Inspection Cell Officer, Ramanathapuram, on 25.10.2005 along with the Deputy Superintendent of Police, Department of Vigilance and Anti-Corruption, Virudunagar, and based on the report, the Transport Commissioner, Chennai, the 2nd respondent herein, issued a charge memo, dated 25.4.2006 to the petitioner, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, to wit that, the petitioner in allowing one Thiru. Ramkumar, a private individual to work unauthorisedly from the year 2000 onwards, for typing work, given him access to official records and thus failed to maintain absolute integrity and devotion to duty and conducted himself in a manner of unbecoming of a Government Servant. Responding to the charge memo, the petitioner submitted a written representation dated 12.6.2006 denying the charges. The 2nd respondent, on receipt of the abovesaid explanation, by order dated 23.3.2007 appointed the Deputy Transport Commissioner, Salem, to conduct an enquiry into the allegations and submit a report. The enquiry officer held that the charges levelled against the petitioner as not proved. Thereafter, the disciplinary authority, Principal Secretary and Secretary to Government, Home (Transport) Department, Chennai, the 1st respondent herein, by proceedings dated 8.7.2008, disagreed with the findings of the enquiry officer and held that the charges framed against the petitioner as proved. By enclosing the copy of the enquiry officer‘s report and his dissenting note, the disciplinary authority has called for further representation. In response to the show cause notice, the petitioner submitted a further representation on 25.5.2009, in which, he has put forth valid reasons and requested the disciplinary authority to accept the enquiry officer‘s report and prayed to drop further action. But, the 1st respondent without considering the reply in proper perspective, has passed the impugned order in G.O. (D) No. 1133, Home (Tr-II) Department, dated 9.11.2009, holding the charges as proved and imposed a punishment of stoppage of increment for a period of one year with cumulative effect intended to affect his pension. Being aggrieved by the same, the petitioner has come forward with the present writ petition in W.P. No. 2456 of 2010. In the mean time, the first respondent has prepared a panel of Regional Transport Officers fit for promotion as Deputy Transport Commissioner for the year 2009-10. Therefore, the petitioner has filed another writ petition in W.P. No. 12108 of 2010, seeking for promotion as Deputy Transport Commissioner in the panel for the year 2009-10, without reference to the punishment imposed in G.O. (D) No. 1133, Home (Transport II) Department, dated 9.11.2009.

2. Assailing the correctness of the order, Mr. K. Venkataramani, learned Senior Counsel for the petitioner submitted that the petitioner was joined the office of the Regional Transport Officer, Virudhunagar, only in the year 2002, whereas, the Disciplinary Authority, without considering the records properly has mechanically held that the petitioner was responsible for allowing a private individual from 2000 onwards and therefore non-application of mind, on the part of the disciplinary authority, is per se apparent and hence the impugned proceedings are liable to be set aside. He further submitted that the procedure followed by the 1st respondent while disagreeing with the views of the enquiry officer is in total violation of principles of natural justice, in that, the disciplinary authority while disagreeing with the findings of the enquiry officer has straightaway held that the charges levelled against the petitioner as proved. According to the learned Senior Counsel, if the disciplinary authority intends to disagree with the findings recorded by the enquiry officer then, he should record his tentative reasons for disagreement and thereafter, provide an opportunity to the delinquent officer to represent on the tentative reasons, before recording any finding on the charges.

3. Taking this Court through the dissenting note of the 1st respondent, learned Senior Counsel further submitted that there is a predetermined mind on the part of the disciplinary authority and in such circumstances, calling for further representation on the dissenting note is nothing but an empty formality. As regards the procedure to be followed, while disagreeing with the findings of the enquiry officer, he placed reliance on a Division Bench judgment of this Court in P. Govindan v. State of Tamil Nadu represented by the Secretary to Government, Rural Development (E6) Department, The Director of Rural Development, The Collector of Cuddalore District and The Registrar, Tamil Nadu Administrative Tribunal (2006) 1 MLJ 624.

4 Referring to the list of witnesses cited, learned Senior Counsel for the petitioner submitted that out of three witnesses cited on behalf of the department, two of them alone were enquired and after considering the evidence, the enquiry officer found that the charges against the petitioner were not substantiated and therefore, held as not proved. But the disciplinary authority, relying on the statements of Personal Assistant and two other Superintendents in the office of the Regional Transport Officer, Virudhunagar, obtained during preliminary enquiry, has come to an erroneous conclusion, holding that the charges as proved. He submitted that there is not only a procedural error, but by taking into consideration, the statements obtained behind the back of the petitioner, there is a violation of the principles of natural justice, in that, they were not examined in the oral enquiry. In this context, he placed reliance on a decision of this Court in K. Ramalingam v. Superintendent of Police (2009) 7 MLJ 578.

5 Based on the counter affidavit filed by the Special Secretary to Government, Home (Transport.II) Department, Secretariat, Chennai, Ms. Lita Srinivasan, learned Government Advocate, submitted that while the petitioner was functioning as a Regional Transport Officer, Virudhunagar, a surprise check was conducted by the Vigilance and Anti-Corruption Department, along with District Inspection Cell authorities of Ramanathapuram, on 25.10.2005 at 17.00 hours and certain irregularities were found, to wit that the petitioner had allowed one Thiru. R. Ramkumar, a private individual, to work unauthorisedly in his office from the year 2000 onwards, for typing work and given him access to official records and thus failed to maintain absolute integrity and devotion to duty and conducted himself in a manner of unbecoming of a Government Servant. She further submitted that charges were framed against the petitioner under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. As the petitioner did not admit the charges, an enquiry officer was appointed. He submitted a report holding that the charges levelled against the petitioner, as not proved. Since the findings of the enquiry officer are only advisory in nature and not binding on the disciplinary authority, who can disagree with the report and come to his own conclusion on the assessment of evidence on record, the disciplinary authority has examined the charges framed against the petitioner, the explanation, finding of the enquiry officer and came to a prima facie conclusion that the charges as proved. Therefore, along with the dissenting note and the copy of the enquiry officer‘s report, the disciplinary authority issued a show cause notice dated 8.7.2008 calling upon the petitioner to show cause. Thereafter, when the disciplinary authority considered the entire records, he found that the enquiry officer did not deny the unauthorised employment of a private individual in the office of the Regional Transport Officer, Virudhunagar, from the year 2000 onwards and that when the Personal Assistant and two other Superintendents in the office of the Regional Transport Officer, Virudhunagar, have admitted the unauthorised employment of a private individual in the said office, to do typing work, due to heavy official work from 17.1.2002 to 25.10.2005, the disciplinary authority has rightly exercised his authority and discretion as per the rules.

6 Referring to the evidence let in by P.W.1-Thiru. R. Thomas and P.W.2-Thiru. M.R. Manamathapandian, learned Government Advocate, further submitted that when some evidence is available on record to come to a prima facie conclusion that a private individual was allowed to work in the office of the Regional Transport Officer, Virudhunagar, the finding recorded by the disciplinary authority cannot be said to be perverse warranting interference. It is also her further contention that the reasons for deviation from the findings of the Inquiry Officer cannot be said to have been made without any basis, when the statements are already on record and in such circumstances, she submitted that adequacy of the evidence for arriving at the conclusion of guilt against the petitioner, cannot be canvassed by the writ petitioner. She also submitted that adequate opportunity has been given to the writ petitioner in the disciplinary proceedings and when the further representation of the petitioner, on the tentative findings recorded by the disciplinary authority, was put on notice and considered, there is no violation of any procedure or principles of natural justice. She further submitted the fact that a private individual had been permitted to work in the office of the Regional Transport Officer, Virudhunagar, has been proved and in such circumstances, imposition of appropriate penalty of stoppage of increment for a period of one year with cumulative effect with an intend to have an effect on the pension of the petitioner, cannot be said to be disproportionate to the charges, warranting interference. Learned counsel for the State further submitted that the decisions relied on by the petitioner are not applicable to the facts of this case. For the abovesaid reasons, she prayed to sustain the impugned order.

Heard the learned counsel for the parties and perused the materials available on record.

7 In Punjab National Bank v. Kunj Behari Misra AIR 1998 SC 2713 : (1998) 7 SCC 84 : 1998-II-LLJ-809 , the Supreme Court held that Article 311(2) of the Constitution of India mandates the Disciplinary Authority to give an opportunity of representation to the charged employee on the findings. While explaining the principles laid down in Managing Director, ECIL v. B. Karnakar AIR 1994 SC 1074 : (1993) 4 SCC 727 : (1993) 2 MLJ 37 : 1994-I-LLJ-162, on the aspect of principles of natural justice, in furnishing a copy of the enquiry officer‘s report, with an opportunity to the delinquent officer to submit his further representation on the report and in the case of disagreement with the enquiry officer ‘s report, the Supreme Court, at Paragraphs 18 and 19, held as follows at p. 818 of 1998-II-LLJ-809 :

'18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer ‘s report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar‘s case.

19. 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. '

(emphasis supplied)

8 In YoginathD. Bagde v. State of Maharastra AIR 1999 SC 3734: (1999) 7 SCC 739, Rule 9(2) of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979, which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority, came up for consideration and as per the said Rule, the Disciplinary Authority shall record its reasons for such disagreement. In that case, following an unsuccessful trap, disciplinary proceedings were initiated against the judicial officer, alleged to have involved in corrupt practice. The Inquiring Authority held that the charges as not proved. But the Disciplinary Committee of the High Court disagreed with the findings of the Inquiring Authority and held that the charges as proved. Minutes of the Disciplinary Committee were as follows:

'Discussed. For the reasons recorded in Annexure ‘A’ hereto, the Committee disagrees with the findings of the Enquiry Officer and proved. It was, therefore, tentatively decided to impose upon the Judicial Officer penalty of dismissal from service. Let notice, therefore, issue to the delinquent Judicial Officer calling upon him to show cause why penalty of dismissal from as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, should not be imposed upon him. Show cause notice will be accompanied by a copy of the Report of the Inquiring Authority and the reasons recorded by this Committee. '

9 The delinquent therein filed his reply to the show cause notice. Thereafter, acting on the recommendations, the Government dismissed the judicial officer, against which, the appellant therein filed a writ petition, which was also dismissed. When the matter taken on appeal to Supreme Court, one of the contentions raised was that there was violation of the principles of natural justice that, before recording its findings on the charges, the Disciplinary Authority did not give an opportunity of hearing to the delinquent officer. Rule 9 of the abovesaid Rules deals with how action has to be taken on the enquiry report and it is reproduced hereunder for the purpose of understanding as to how the disciplinary authority has to proceed with, when he disagrees with the findings of the enquiry officer.

'9. Action on the enquiry report. -(1) The disciplinary authority, if it is not itself the enquiring authority may, for reasons to be recorded by it in writing, remit the case to the enquiring authority for further enquiry and report, and the enquiring authority shall thereupon proceed to hold the further enquiry according to the provisions of Rule 8 of these rules as far as may be.

(2)The disciplinary authority shall if it is not the enquiring authority, consider the record of the enquiry and record its findings on each charge. If it disagrees with the findings of the enquiring authority on any article of charge, it shall record its reasons for such disagreement.

(3)… … …

(4)(i)If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the major penalties should be imposed on the government servant, it shall -

(a)furnish to the government servant a copy of the report of the enquiry held by it and its findings on each article of charge, or, where the enquiry has been held by an enquiring authority appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge expressly stating whether or not it agrees with the findings of the enquiry authority, together with brief reasons for its disagreement, if any, with the findings of the enquiring authority; and

(b)give to the government servant a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the enquiry held under Rule 8 of these rules.

(ii)(a)-(b)… … …

(iii)Where it is not necessary to consult the Commission, the disciplinary authority shall consider the representation, if any, made by the government servant in pursuance of the notice given to him under Clause (i)(b) of this sub-rule and determine what penalty, if any, should be imposed on him on the basis of the evidence adduced during the enquiry held under Rule 8 and make such order as it may deem fit. '

10 Having regard to the procedure set out in the abovesaid Rule and considering the aspect of violation of principles of natural justice alleged, the Supreme Court considered as to when a delinquent officer is required to be given an opportunity of hearing or making his representation, on the tentative reasons, when the Disciplinary Authority disagrees with the findings of the Enquiry Officer. At Paragraphs 28 and 29, the Supreme Court, held as follows:

'28. In view of the provisions contained in the statutory rule extracted above, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, 'an opportunity of hearing ' may have to be read into the rule by which the procedure for dealing with the enquiring authority ‘s report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be 'not guilty ' by the enquiring authority, is found 'guilty ' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of 'not guilty ' has already been recorded.

29.We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the disciplinary authority to disagree with the findings of the enquiring authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. 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.

31.In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the 'right to be heard' would be available to the delinquent up to the final stage. This right being a Constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the .

32.Applying the above principles to the facts of this case, it would be noticed that in the instant case the District Judge (enquiry officer) had recorded the findings that the charges were not proved. These findings were submitted to the Disciplinary Committee which disagreed with those findings and issued a notice to the appellant requiring him to show cause why he should not be dismissed from service. It is true that along with the show-cause notice, the reasons on the basis of which the Disciplinary Committee had disagreed with the findings of the District Judge were communicated to the appellant but the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. The Disciplinary Committee, in fact, had acted in accordance with the statutory provisions contained in Rule 9(4)(i)(a) and (b). He was called upon to show cause against the proposed punishment of dismissal as will be evident from the minutes of the Disciplinary Committee dated 21.6.1993 which provide as under:

'Decision: Discussed.

For the reasons recorded in Annexure ‘A ‘ hereto, the Committee disagrees with the finding of the enquiry officer and finds that the charges levelled against the delinquent judicial officer have been proved.

It was, therefore, tentatively decided to impose upon the judicial officer penalty of dismissal from service.

Let notice, therefore, issue to the delinquent judicial officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 should not be imposed upon him.

Show-cause notice will be accompanied by a copy of the report of the enquiring authority and the reasons recorded by this Committee.'

These minutes were recorded after the Disciplinary Committee had considered the enquiry report and differed with the findings and recorded its final opinion in para 10 of its reasons as under:

'10. The Disciplinary Committee is of the opinion that the findings recorded by the enquiry officer on both the charges cannot be sustained. The Committee, after going through the oral and documentary evidence on record, is of the opinion that both the charges against the delinquent are proved. The delinquent is a judicial officer who has failed to maintain the absolute integrity in discharge of his judicial duties. '

34.Along with the show-cause notice, a copy of the findings recorded by the enquiry officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a 'tentative' decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.

35. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to the findings on the two charges framed against him, the principles of natural justice, as laid down by a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra(1998) 7 SCC 84 , referred to above, were violated. '

(emphasis supplied)

11 In the above reported case, on behalf of the respondents, it was submitted that the Disciplinary Committee had given an opportunity of hearing to the appellant therein, before finally recommending to the State Government to dismiss him from service and therefore, the principles of natural justice were fully complied with and that too, at a stage earlier than the stage when the curtain was finally brought down on the proceedings. It was further contended that not only the findings recorded by the Enquiry Officer, but the reasons, for which the Disciplinary Committee had not agreed with the findings of the enquiry officer, were communicated to the appellant therein to whom a notice was also issued to show-cause, as to why he should not be dismissed from service. Therefore, it was contended on behalf of the High Court that it cannot be said that there was failure or denial of opportunity at any stage. While repelling the abovesaid contention, the Supreme Court, at Paragraph 37, further held that,

'37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges leveled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show-cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank v. Kunj Behari Misra (supra) in which it had been categorically provided, following earlier decisions, that if the Disciplinary Authority does not agree with the findings of the Enquiry Officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the Disciplinary Authority that the findings already recorded by the Enquiry Officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case.'

(emphasis supplied)

12 As regards post-decisional hearing, it is useful to refer another decision in H.L. Trehan v. Union of India AIR 1989 SC 568 : (1989) 1 SCC 764 : 1994-II-LLJ (Suppl)-1113, wherein, at Paragraphs 12 and 13, the Apex Court held as follows at p. 1116 of LLJ:

'12. It is, however, contended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In, our opinion, the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. In this connection, we may refer to a recent decision of this Court in K.I. Shephard and Others v. Union of India and Others AIR 1988 SC 686 : (1987) 4 SCC 431 : 1988-I-LLJ-162 : 1987 (3) JT 600. What happened in that case was that the Hindustan Commercial Bank, The Bank of Cochin Ltd. and Lakshmi Commercial Bank, which were private Banks, were amalgamated with Punjab National Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under Section 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three Banks were excluded from employment and their services were not taken over by the respective transferee Banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of being heard. RANGANATH MISRA, J. speaking for the Court observed as follows:

We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand, the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.

13.The view that has been taken by this Court in the above observation is that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose. Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would not be any compliance with the rules of natural justice or avoid the mischief of arbitrariness as contemplated by Article 14 of the Constitution. The High Court, in our opinion was perfectly justified in quashing the impugned circular.'

(emphasis supplied)

13 Reverting back to the case on hand, while disagreeing with the enquiry officer‘s report, the Disciplinary Authority, first respondent herein, has recorded as follows:

'The Inquiry Officer, in his findings did not deny the unauthorised employment of the private individual Tr. R. Ramkumar in the office of the Regional Transport Officer, Virudhunagar from the year 2000 onwards. The Personal Assistant and two other Superintendents in the Office of the Regional Transport Officer, Virudhunagar admitted the unauthorised employment of Tr. R. Ramkumar a private individual in official work. From 17.1.2002 to 25.10.2005 the individual was in typing work in access to official records. You have thus allowed the arrangements (i.e., allowing the private individual to work) to continue which certainly should not have been done. The findings of the Inquiry Officer is not accepted. Hence, the charge is held as proved.'

14 It is evident from the above that while disagreeing with the views of the enquiry officer, the Disciplinary Authority has taken into consideration, statements of the Personal Assistant and two other Superintendents, working in the Office of the Regional Transport Officer, Virudhunar, who had admitted unauthorised employment of the abovesaid individual. Their statements have been made during the preliminary enquiry. Out of three departmental witnesses, sought to have been examined to sustain the charges, only two of them were examined and one was dispensed with. Neither the Personal Assistant nor two other Superintendents working in the Office of the Regional Transport Officer, Virudhunar, were examined in the oral enquiry.

15 On the pleadings and submissions, two issues require consideration:

(1) Whether the Disciplinary Authority can take into consideration the statements, recorded during the preliminary enquiry, as the basis for arriving at a tentative opinion or conclusion of guilt while differing with the findings of the enquiry officer and thereafter, proceed to issue a show cause notice to the charged official and in such circumstances, whether there is any violation of principles of natural justice, when the persons from whom the statements were obtained, were not examined in the oral enquiry, so as to enable the charged official to have an opportunity to cross-examine them; and

(2) Whether the Disciplinary Authority, while disagreeing with the findings of the enquiry officer, has to record only the tentative reasons for disagreeing with the findings of the enquiry officer and propose to call for further representation on the reasoning before recording the final finding on the charges.

16 At this juncture, it is pertinent to point out that when the Disciplinary Authority takes the assistance of an enquiry officer to conduct the enquiry into the charges and if any findings adverse to the interests of the charged official are recorded, then he has to be furnished with a copy of the enquiry officer ‘s report, so as to enable him to make his further representation, on the findings of the enquiry officer, to the disciplinary authority and at that stage, when the Disciplinary Authority acknowledges the further representation, then he has to apply his mind and consider as to whether, the facts on the basis of which, disciplinary action has been taken, have been established, whether the charged official has been provided with sufficient opportunity to defend the disciplinary proceedings, whether the procedure contemplated under the rules have been followed, whether there is sufficient ground to proceed further with the disciplinary proceedings, and then, he can record his final findings on the charges to remit the matter to the enquiry officer to rectify any procedural defect noticed with regard to the above aspects. But if the enquiry officer records the findings in favour of the delinquent officer, holding that the charges as not proved, with or without any recommendation for exoneration and if the Disciplinary Authority disagrees with those findings, then, it is mandatory on the part of the Disciplinary Authority to form a tentative opinion for disagreeing with the findings of the enquiry officer. But if the Disciplinary Authority, instead of recording a tentative opinion with reasons, for disagreement, proceeds to hold him guilty of the charges and thereafter, issue notice to the charged official, then it is nothing but a post-decisional hearing. It should also be borne in mind that principles of natural justice require that before the disciplinary authority records his final finding on the charges, he has to examine various aspects stated supra. But, without examining the same, if the Disciplinary Authority arrives at a final finding on the charges as proved, and thereafter, call upon the charged official to offer his further representation on the finding and also on the procedural aspects, then it is only an empty formality, for the reason, there is not only a post decisional hearing on the findings, but it is also on the procedural aspect. In the case on hand, the Disciplinary Authority has not only/recorded his reasons for disagreeing with the findings of the enquiry officer, but has also arrived at the conclusion, holding the charges as proved. At the risk of repetition, the final conclusion of the Disciplinary Authority on the charges is extracted hereunder:

'You have thus allowed the arrangements ( i.e., allowing the private individual to work) to continue which certainly should not have been done. The findings of the Inquiry Officer is not accepted. Hence, the charge is held as proved.'

17 In P. Govindan v. State of Tamil Nadu (supra), a Division Bench has considered a case as to whether recording a conclusion on the charges, at the stage of issuance of notice, would cause prejudice to the charged official and whether it satisfies principles of natural justice. In the reported judgment, the Disciplinary Authority, after differing with the enquiry officer, issued a show cause notice to the abovesaid official with a pre-determined mind, holding that the charges as proved. While testing the correctness of the abovesaid order, the Division Bench of this Court, at paragraph 12, held that, at p. 629 of MLJ:

'12. The Supreme Court in the case of Punjab National Bank and Others v. Kunj Behari Misra and Others (supra), held that in a departmental proceedings, what is of ultimate importance is a finding of the disciplinary authority. In the context of such seriousness, the Supreme Court held that principles of natural justice would demand that the disciplinary authority, which is deciding against the delinquent officer, must give an opportunity to rebut the view taken, differing from that of the enquiry officer. It further held that whenever the disciplinary authority disagreed with the enquiry authority, then, it must record its tentative reasons for such disagreement and give the delinquent officer an opportunity to represent, before it records its findings. The judgment of the Supreme Court applies in all force to the case on hand, considering the fact that the first respondent‘s notice dated 11.5.2001 is silent on the reasons for taking a different view from that of the enquiry officer. As submitted by the learned counsel for the petitioner, it seemed to carry a conclusion premature that all five charges are held as proved. With such pre-emption on the conclusion, the very purpose of issuing a notice appears to be an empty formality. The purpose of issuing a notice is for enabling the delinquent officer an opportunity to persuade the disciplinary authority to accept the findings of the enquiry officer. Hence, the effectiveness of an opportunity is an absolute necessity, which must be patent even on the face of reading the notice, so that it would enable the delinquent officer to counter all the allegations, before the disciplinary authority takes further action, which may be prejudicial to the delinquent officer. The recording of a conclusion even at the notice stage is premature to give an impression to a delinquent officer that the entire exercise is a mere ritual before the ultimate order is passed. In the light of the facts found by the enquiry officer and the total absence of any material disclosed to form the basis for a different conclusion, we are constrained to accept the plea of the petitioner to set aside the order dated 11.5.2001.'

(emphasis supplied)

18 The judgments stated supra emphasise that Article 311(2) of the Constitution of India should not be an empty formality and an opportunity of hearing to the delinquent means that there should be some room for convincing the Disciplinary Authority that the findings already recorded by the enquiry officer is just and proper. What has been done by the Disciplinary Authority in the case on hand is only a post decisional opportunity to the writ petitioner of making further representation. The above said judgment applies to the facts of the present case, where the first respondent herein and the Disciplinary Authority has not only recorded the reasons, but also pre-determined the guilt of the charges.

19 On the procedural aspect as to whether the Disciplinary Authority can take into consideration statements of the Personal Assistant and two other officers, recorded during preliminary enquiry for the purpose of disagreeing with the enquiry officer ‘s finding and also to record an adverse finding of guilt against the charged official, even without examining the abovesaid persons, during oral enquiry and without providing an opportunity of cross-examination to the writ petitioner, it is worthwhile to consider a decision of this Court in W.P. No. 27019 of 2005, dated 15.2.2006, wherein the disciplinary authority accepted the report of the Enquiry Officer and imposed a punishment of reduction in pay by three stages for three years with cumulative effect, holding that all the prosecution witnesses narrated the incident at the time of preliminary enquiry, but turned hostile during oral enquiry. In the unreported judgment, Pws. 1 to 4 disclaimed their earlier statements and turned hostile. The enquiry officer, solely relied on the said statements recorded in the preliminary enquiry and held that the charges as proved. Relying on the decision of the Supreme Court in Union of India v. Mohd. Ibrahim (2004) 10 SCC 87 and an unreported judgment of a Division Bench in W.P. Nos. 29862 and 32581 of 2002, dated 22.2.2005 (Deputy Inspector General of Police, Villupuram and Others v. V. Vanniaperumal and Others), a learned single Judge of this Court set aside the order of penalty of reduction in pay by three stages for three years with cumulative effect.

20 Paragraphs 6 and 8 of the above unreported Division Bench judgment in W.P. Nos. 29862 and 32581 of 2002, dated 22.2.2005 (Deputy Inspector General of Police, Villupuram and Others v. V. Vanniaperumal and Others (supra)), relied on by the learned single Judge in the above unreported order, are worth reproduction for the preposition, as to whether, statements made in the preliminary enquiry can be relied on, when the prosecution witnesses turn hostile in the regular enquiry.

'6. We have carefully considered the relevant materials and the rival contentions. We have already referred to the charges levelled against the applicants. It is also relevant to note that apart from the applicants two more officers have also been implicated along with them. They are one Sattanathan, Sub-Inspector of Police and Antony, Inspector of Police. It is brought to our notice that Sattanathan is no more and so far as the other officer Antony is concerned lesser punishment has been imposed. Now we are concerned with the charges levelled against both the applicants. In the light of the conclusion arrived at by the Tribunal, we perused the finding of the Enquiry Officer. It is not in dispute that all the prosecution witnesses except P.W.3, who is none other than the Deputy Superintendent of Police, the other witnesses viz., P.Ws.1, 2, 4 and 5. turned hostile before the Enquiry Officer and not supported their earlier statement made at the preliminary enquiry. The Enquiry Officer having noted the above aspect curiously submitted a report holding that all the three charges levelled against them are proved based on the preliminary enquiry.

8.In our case, we have already referred to the fact that the prosecution witnesses viz., P.Ws.1, 2, 4 and 5 turned hostile and not supported their preliminary version. However, the Enquiry Officer basing reliance on their earlier statement in the preliminary enquiry found that all the charges levelled against them are proved. In the light of the decision of the Supreme Court referred to above, after fullfledged enquiry was held the preliminary enquiry had lost its importance. Further, we find no substance or material to arrive at a conclusion that 'since all the three counts were proved by the prosecution beyond reasonable doubts, convincingly, I agree with the findings of the Enquiry Officer, ... '. We are satisfied that there is no material to arrive at such a conclusion by the Deputy Inspector General of Police, while passing an order removing the applicants from service. All these aspects have been considered by the Tribunal in a proper manner and there is no acceptable material or evidence to take different view as that of the Tribunal. We find no merits in both the writ petitions. Accordingly, they are dismissed. No costs. Consequently, the connected miscellaneous petitions are dismissed. 'The said conclusion was arrived at by the Division Bench based on the decision of the Honourable Supreme Court in NarayanaDattatraya Ramteerthakhar v. State of Maharashtra AIR 1997 SC 2148 . '

(emphasis supplied)

21 The judgment of the Supreme Court relied on by the Division Bench in Union of India v. Mohd. Ibrahim (supra), is as follows,

'the order of dismissal was vitiated, as the findings have been based on consideration of statement of the persons, examined during the preliminary enquiry and for the said fact, the Tribunal set aside the order of dismissal which was upheld by the High Court and there is no error in the said order setting aside the dismissal order. '

(emphasis supplied)

22 In a recent decision of this Court in K. Ramalingam v. Superintendent of Police, Perambular (supra) following the disciplinary proceedings initiated under Rule 3(b) of the Discipline and Appeal Rules, an Head Constable of Police was dismissed from service. When the correctness of the order of dismissal was challenged, one of the contentions raised before this Court was that when the complainant and other witnesses have turned hostile during the oral enquiry, the Disciplinary Authority had erred in relying on the statements recorded in the preliminary enquiry and imposed a penalty. Placing reliance on the above decisions, this Court has held that when reliance is placed on the statements given by the witnesses during the preliminary enquiry and that when there was no occasion to cross-examine the said witnesses, then the charges framed against the delinquent cannot be said to be validly proved.

23 Thus, it is the settled legal position that statements made during the preliminary enquiry cannot be taken as the basis for arriving at the finding of guilt. The decisions of the Supreme Court in Union of India v. Mohd. Ibrahim (supra) and this Court in K. Ramalingam v. Superintendent of Police, Perambular (supra), and two decisions stated supra are applicable to the facts of the case on hand.

24 Perusal of the impugned G.O. (D) No. 1133, Home (Transport II) Department, dated 9.11.2009 also shows that after recording the charges, explanation of the petitioner, findings of the enquiry officer and the further explanation on the deviated views of the Government, the Disciplinary Authority without any due consideration to the further representation of the petitioner, has recorded as follows:

'(3) The Government have examined the charge framed against Thiru. Muthu Anand, his explanation, findings of the Inquiry Officer, reasons for deviation from the findings of the Inquiry Officer and further representation of the delinquent officer on the deviated views of the Government carefully and independently along with the connected records and held the charge as proved. For the proven charge, the Government have decided to impose the punishment of 'stoppage of increment for a period of one year with cumulative effect'. The Government, accordingly, order that the punishment of stoppage of increment for a period of one year with cumulative effect be imposed on Thiru.Muthu Anand, Regional Transport Officer, Virudhunagar for the proven charge.

(4)The above punishment is inclusive of leave period if any spent on him and it will affect his pension. '

25 Reading of the impugned order shows that there is absolutely no material on record to indicate that the Disciplinary Authority has considered the further representation of the writ petitioner on the dissenting note. At the risk of repetition, the observation of the Supreme Court in H.L. Trehan v. Union of India (supra), is reproduced hereunder, at p. 1116 of 1994-III-LLJ-1113:

'12. … In our opinion, the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity…. '

26 This Court could see the closed mind of the disciplinary authority in simply reiterating the decision arrived at the time of disagreement with the enquiry officer ‘s report, without any consideration of the further representation of the petitioner. In the light of the above discussion, the contention of the learned counsel for the State that unauthorised employment of the private individual had been substantiated by the evidence of P.Ws.1 and 2 and when the enquiry officer has also taken note of the presence of the abovesaid private individual in the Office of the Regional Transport Officer, Virudhunar and that there is no infirmity in the impugned order cannot be countenanced in law. Her further submission that merely because the Personal Assistant and other two witnesses, were not examined in the oral enquiry, reliance cannot be made for the purpose of arriving at a tentative opinion, also cannot be countenanced in law, for the simple reason that the Disciplinary Authority can agree or differ with the views of the enquiry officer, only based on evidence let in, during the oral enquiry. As observed by the Supreme Court in Union of India v. Mohd. Ibrahim (supra), after the full fledged oral enquiry, the preliminary enquiry has lost his importance. If any statements have already been recorded during the preliminary enquiry from some persons, pertaining to the charges framed against the delinquent officer, the disciplinary authority, after examining the report and records, can find fault with the enquiry, for not examining the said persons, if the charges have been framed by some other authority, competent to initiate the disciplinary proceedings. If the disciplinary authority himself has formulated the charges and cited only few witnesses, and all the persons from whom, statements have been obtained, have not been examined in the oral enquiry, he cannot simply rely on their statements and record any finding against the charged official and that would be amounting to withholding certain information to the charged official and arriving at the final finding, on the basis of the statements obtained behind the back of the charged official.

27 At the time of considering the entire records, i.e., before taking a decision to differ with the enquiry officer ‘s report, it is always open to the Disciplinary Authority to remit the matter, with a direction to the enquiry officer to examine the persons, whose statements have been obtained during the preliminary enquiry, so as to enable the charged officials to have an opportunity of cross-exarnining them. At this juncture, it is worthwhile to reproduce certain paragraphs from the judgment of the Supreme Court in CanaraBank v. Debasis Das AIR 2003 SC 2041 : (2003) 4 SCC 557 : 2003-II-LLJ-531 , as follows at p. 537 of LLJ:

'13. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

14.The expressions 'natural justice' and 'legal justice' do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As LORD BUCKMASTER said, no form or procedure should ever be permitted to exclude the presentation of a litigants ‘ defence.

15.The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at (sic) in 1215, the first statutory recognition of this principle found its way into the 'Magna Carta'. The classic exposition of Sir Edward Coke of natural justice requires to 'vacate interrogate and adjudicate ‘. In the calibrated case of Cooper v. Wandsworth Board of Works 1963 (143) ER 414, the principle was thus stated:

'Even God did not pass a sentence upon Adam, before he was called upon to make his defence. 'Adam' (says God), 'where art thou? Hast thou not eaten of the tree whereof, I commanded thou that though should not eat'.

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

16. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

19.Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a

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judicial act and an administrative at has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression ‘civil consequences ‘ encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. ' (emphasis supplied) 28 At the time of filing of the writ petition, the petitioner was aged 57 years and he is due to retire this month, on attaining the age of superannuation. The charge pertains to the year 2002. Though the learned counsel for the State prayed that if this Court for any reason is not inclined to accept the contentions of the respondents, then the matter may be remitted, giving opportunity to them to proceed further against the writ petitioner from the stage, where the defect has crept in, this Court is not inclined to concede to the request of the respondent and remit the matter at this length of time, after 9 years, as the incident is reported to have occurred in 2002. Courts have consistently held that delay in conclusion of the disciplinary proceedings would cause prejudice to a Government servant. Useful reference can be made to a decision of the Apex Court in State of A.P. v. N. Radhakrishnan AIR 1998 SC 1833 : (1998) 4 SCC 154, where there was considerable delay in conclusion of the disciplinary proceedings, though there were adequate materials to proceed against the officers. Considering the prejudice caused to the employee due to the delay and the balance to be maintained between purity of administration and the adverse effect of prolonged proceedings, the Supreme Court quashed the disciplinary proceedings. At Paragraph 19, the Supreme Court held as follows: ' 19.It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations. ' 29 Further, if the matter has to be remitted at this length of time, giving liberty to the Disciplinary Authority and in the event of the enquiry proceedings not completed before the date on which, he attains the age of superannuation, then there is always a possibility of placing the petitioner under suspension, with a further direction not to permit him to retire from service, till the disposal of the disciplinary proceedings, as there is a necessity to retain the master and servant relationship. Again Courts have held that except in the case of recovery, disciplinary proceedings cannot be continued after retirement, if he is not retained in service. Thus, in the case of disagreement with the enquiry officer ‘s report, substantial requirement of following the principles of natural justice is that, the disciplinary authority can record only his tentative opinion on the charges with reasons and then, issue a notice to the charged official to show cause and that the disciplinary authority cannot hold him guilty at that stage and thereafter, receive further representation, which would offend the well cherished principles of natural justice. Considering the process involved in examining the witnesses, whose statements have been recorded in the preliminary enquiry and the time, which is likely to be consumed, this Court is not inclined to remit the matter. Yet another aspect taken into consideration is that the petitioner has already beeji overlooked once for promotion, during the pendency of the charges and again, for the second time, during the currency of punishment. Prejudice to the petitioner caused due to the disciplinary proceedings is apparent on the face of record. He has virtually undergone the punishment of postponement of promotion. Though Courts have held that postponement of promotion due to currency of punishment, is not a double jeopardy, yet on the facts and circumstances of this case, by remitting the matter to the disciplinary authority, the agony will be only prolonged, even after the age of superannuation. Justice should not only be done, but should manifestly seemed to be done. 30 In view of the above, the impugned G.O. (D) No. 1133, Home (Transport II) Department, dated 9.11.2009 is set aside. Consequently, the petitioner is entitled to consider for promotion as Deputy Transport Commissioner for the panel of the year 2009-10. As the petitioner is due to retire in this month, the respondents are directed to consider his case, well before the age of superannuation and pass orders. 31 In the result, the writ petitions are allowed. No costs.
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