Madras High Court
The Commissioner And Special ... vs E.Gnanasekar on 23 April, 2021
W.A.(MD)No.882 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.882 of 2021
and
C.M.P(MD)No.3965 of 2021
The Commissioner and Special Officer,
Thoothukudi City Municipal Corporation,
Thoothukudi. ... Appellant / Respondent
Vs.
E.Gnanasekar ... Respondent / Writ Petitioner
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent, praying to
set aside the order dated 26.02.2021 made in W.P.(MD)No.674 of 2019 on the
file of this Court.
For Appellant : Mr.S.Saji Bino
For Respondent : Mr.A.Selventhiran
for Mr.J.Ashok Kumar
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W.A.(MD)No.882 of 2021
JUDGMENT
************
[Judgment of the Court was delivered by T.S.SIVAGNANAM, J.]
We have heard Mr.Saji Bino, learned counsel for the Appellant and
Mr.A.Selventhiran, learned counsel for the Respondent.
2.This Writ Appeal filed by the Commissioner and Special Officer of
Thoothukudi City Municipal Corporation, is directed against the Order,
dated 22.06.2021 in W.P.(MD) No.674 of 2019 filed by the respondent herein.
3.The respondent prayed for a issuance of a Writ of Certiorarified
Mandamus to quash the charge memo, dated 24.04.2006 and the proceedings of
the appellant, dated 13.03.2018, by which, a re-enquiry was ordered by the
appellant on the charges framed against the respondent.
4.The learned Writ Court by the impugned order, allowed the writ
petition and quashed the charge proceedings only on the ground of delay and
latches. The learned Single Bench referred to a decision in the case of
Koothapillai Vs. The Commissioner, Municipal Administration and Others
reported in 2009 (1) MLJ 761, which was allowed following several decisions
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W.A.(MD)No.882 of 2021
of the Hon’ble Supreme Court, wherein, disciplinary proceedings were quashed
on the ground of unexplained delay and latches. In our considered view, the
said decision would not be applicable to the facts of the instant case, since
charge memo was issued to the respondent on 24.04.2006. The respondent
submitted his reply and an enquiry was conducted and the Enquiry Officer
submitted a report, dated 28.05.2013. For five long years, the appellant did
nothing on the enquiry report and did not afford an opportunity to the
respondent to submit further representation on the findings of the Enquiry
Officer and did not pass final orders. After about 5 years, a proceedings, dated
13.03.2018, was issued stating that the Enquiry Officer, who was appointed to
enquire into the charges did not conduct the enquiry properly and therefore, the
appellant desires to conduct a re-enquiry. It is at that stage, the respondent filed
a writ petition challenging the charge memo as well as the proceedings, dated
13.03.2018 ordering re-enquiry. On a perusal of the proceedings, dated
13.03.2018, we have no hesitation to hold that the same is un-sustainable in law.
5.It is settled legal position that the findings of the Enquiry Officer
will not bind the Disciplinary Authority. If the Disciplinary Authority holds that
the findings of the Enquiry Officer are not sustainable, he can disagree with the
findings. Hence, in the event of such disagreement a Disciplinary Authority has
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W.A.(MD)No.882 of 2021
to issue a show cause notice to the delinquent employee clearly setting out as to
how he is of the opinion that the findings rendered by the Enquiry Officer is not
sustainable and how he proposes to come to a conclusion that the charges are
held to be proved against the delinquent differing from the finding of the
Enquiry Officer, who might have exonerated the delinquent employee.
Thereafter, the delinquent employee is entitled to submit his objections and after
affording reasonable opportunity, the Disciplinary Authority should conclude
the proceedings. Unfortunately, the appellant appears to be not aware of the
legal position and by proceedings dated 13.03.2018, stated that the Enquiry
Officer, who was appointed, did not properly conduct the enquiry. Therefore,
he is ordering re-enquiry. Such a procedure is unknown to service
jurisprudence. Therefore, the proceedings, dated 13.03.2018 is liable to be set
aside.
6.Under normal circumstances, the Court might have remanded the
matter back to the Disciplinary Authority namely, the appellant to issue fresh
notice to the respondent / delinquent and to proceed afresh from that stage.
However, we are not inclined to give any such liberty in the instant case,
because more than 5 years have lapsed, after the enquiry report, dated
28.05.2013 was submitted.
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W.A.(MD)No.882 of 2021
7.Next, we move on to consider as to whether the learned Single
Bench was correct in quashing the charge memo. As pointed out earlier, the
only reason for quashing the charge memo is on the ground of delay and
latches. In our considered view, the theory of delay and latches cannot be made
applicable to the instant case, as the charge memo was issued in the year 2006.
The respondent submitted to the jurisdiction, gave his reply, Enquiry Officer
was appointed, the respondent participated in the enquiry and the Enquiry
Officer has submitted his report, dated 28.05.2013. At no earlier point of time,
the respondent had challenged the charge proceedings and for the first time, the
challenge was made in the year 2019. Therefore, on the facts and circumstances
of the case, the charge memo could not have been quashed.
8.In the result, the writ appeal is partly allowed and the order passed
by the learned Writ Court quashing the charge proceedings, dated 24.04.2006 is
set aside and the matter is restored to the stage of the enquiry report,
dated 28.05.2013. In the light of the reasons we have assigned earlier, the
proceedings of the appellant, dated 13.03.2018 is quashed. The respondent is
directed to submit his further representation to the enquiry report, dated
28.05.2013, within a period of two weeks from the date of receipt of a copy of
the judgment and on receipt of the same, the appellant, namely, Disciplinary
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W.A.(MD)No.882 of 2021
Authority shall pass final orders on merits and in accordance with law within a
period of three weeks, thereafter. No Costs. Consequently, the connected
miscellaneous petition is also closed.
[T.S.S., J.] & [S.A.I., J.]
23.04.2021
Index : Yes / No
Internet : Yes / No
RM
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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W.A.(MD)No.882 of 2021
T.S.SIVAGNANAM, J.
AND
S.ANANTHI, J.
RM
JUDGMENT MADE IN
W.A.(MD)No.882 of 2021
23.04.2021
https://www.mhc.tn.gov.in/judis/
