Madras High Court
P.Arunachalam vs The Director on 30 June, 2023
W.P.No.22850 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2023
CORAM
THE HONOURABLE MR.JUSTICE P.B.BALAJI
W.P.No.22850 of 2019
P.Arunachalam .. Petitioner
Vs.
1. The Director
Fire & Rescue Service
17, Rukmani Lakshmipathy Road
Egmore, Chennai 600 008.
2. The Deputy Director (Full Incharge)
Central Region
Tiruchirapalli.
3. The District Officer
Fire & Rescue Service Department
Villupuram District. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India praying
for a writ of Certiorarified Mandamus calling for the records relating
the third respondent herein in R.C.No.2295/B1/2017 P.R.No.09/2017
dated 19.09.2017 and the order passed in appeal by the second
respondent herein in Mu.Mu.No.5139/B1/2017 dated 08.02.2018 and
the consequential order passed in mercy petition by the first
respondent herein in Rc.No.9337/A3/3018 dated 14.09.2018 and
quash the same and consequently, direct the respondents to confer the
promotion with all the attendant benefits with due regards to the
petitioner's seniority.
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W.P.No.22850 of 2019
For the Petitioner : Mr.R.S.Anandan
For the Respondents : Mr.M.Shahjahan
Special Government Pleader
ORDER
The petitioner has approached this Court seeking a writ of
Certiorarified Mandamus to call for the records on the file of the third
respondent dated 19.09.2017 and the order passed by the second
respondent in the appeal dated 08.02.2018 and the dismissal of the
mercy petition by the first respondent dated 14.09.2018 and to
consequently, direct the respondents to confer promotion with all
attendant benefits as regards the petitioner's seniority.
2. The petitioner joined the services of the respondent as
Fireman Driver on 09.09.1996. According to the petitioner, except the
impugned charges and punishment, he maintained clean record
throughout his entire career and his services were also appreciated by
superior officers. He was served with a charge memo by the third
respondent on 22.05.2017. On receipt of the said charge memo, he
submitted his explanation, denying the charges, on 31.05.2017. In the
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W.P.No.22850 of 2019
very same communication, he has put the third respondent on notice
that he has not been furnished the documents that have been referred
to in the charge memo and also the statement of witnesses and that
the disciplinary authority could not proceed with the enquiry without
complying with the same.
3. The Enquiry Officer, subsequently, came to be appointed by
the third respondent and without even furnishing the statement of
witnesses examined, even after the completion of the enquiry, he
submitted his report to the disciplinary authority. It is also the case of
the petitioner that the Enquiry Officer has not given a finding based on
any evidence and therefore, the report of the Enquiry Officer itself is
perverse.
4. It is the further grievance of the petitioner that even the
disciplinary authority did not furnish the copy of the enquiry report
before proceeding to hold him guilty of the charges and instead came
to a provisional conclusion to award punishment of stoppage of two
increments with cumulative effect by issuing notice dated 06.09.2017.
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W.P.No.22850 of 2019
5. The petitioner gave his explanation to the show cause notice
on 12.09.2017. The third respondent, without considering his
explanation, proceeded to pass the impugned order. According to the
petitioner, both his appeal as well as mercy petition were also rejected
without giving any reasons. Challenging all these proceedings, the
petitioner has approached this Court mainly on the grounds that he
has been denied a fair opportunity to defend his case and come clean
in the enquiry. In short, the petitioner complains of the violation of
principles of natural justice.
6. The third respondent has filed a counter, wherein, the charges
slapped against the petitioner are set out and except justifying the
charges levelled against the petitioner and the report of the enquiry
officer.
7. Heard learned counsel for the petitioner and learned Special
Government Pleader for the respondents.
8. Learned counsel for the petitioner, apart from canvassing the
grievances of the petitioner as set out in the affidavit and the grounds
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W.P.No.22850 of 2019
raised therein in support of the writ petition, would rely on the
judgment of the Supreme Court in State of U.P. v. Saroj Kumar
Sinha [Civil ppeal No.254 of 2008 dated 02.02.2010]. In the said
judgment, the Supreme Court has held as follows:
"28. When a department enquiry is conducted against
the Government servant it cannot be treated as a casual
exercise. The enquiry proceeding also cannot be conducted
with a closed mind. The enquiry officer has to be wholly
unbiased. The rules of natural justice are requried 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. In the
case of Shaughnessy v. United States, 345 US 206 (1953)
(Jackson J), a judge of the United States Supreme Court has
said "procedural fairness and regularity are of the
indispensable essence of liberty. Severe substantive laws can
be endured if they are fairly and impartially applied".
29. The affect of non disclosure of relevant documents
has been stated in Judicial Review of Administrative Action
by De Smith, Woolf and Jowell, Fifth Edition, Pg. 442 as
follows:
"If relevant evidential material is not disclosed
at all to a party who is potentially prejudiced by it,
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W.P.No.22850 of 2019
there is prima facie unfairness, irrespective of whether
the material in question arose before, during or after
the hearing. This proposition can be illustrated by a
large number of modern cases involving the use of
undisclosed reports by administrative tribunals and
other adjudicating bodies. If the deciding body is or
has the trappings of a judicial tribunal and receives or
appears to receive evidence ex parte which is not fully
disclosed, or hold ex parte inspections during the
course or after the conclusion of the hearing, the case
for setting the decision aside is obviously very strong;
the maxim that justice must been seen to be done can
readily be invoked.""
9. Ultimately, the Supreme Court found that when the
departmental enquiry was conducted against a Government servant
and he was denied access to the documents, especially when such
documents were relied upon by the authorities, it was a case of being
condemned unheard and the Supreme Court set aside the judgment of
the Division Bench on this limited ground alone, as, such an exercise
or failure on the part of the disciplinary authority to follow the
principles of natural justice had resulted in miscarriage of justice to the
Government servants.
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W.P.No.22850 of 2019
10. The facts of the said case would equally apply to the present
case. The petitioner's grievance that he was not given the copies of
documents that were relied on and referred to in the charge memo
was raised at the earliest instance when he gave explanation to the
charge memo on 31.05.2017 itself. Despite the same, the disciplinary
authority has proceeded with the enquiry, that too, behind the back of
the petitioner, without even furnishing the statement of witnesses who
were examined by the Department in respect of the charge memo and
against the petitioner. The third respondent has not even denied the
main contention of the writ petitioner in the affidavit in support of the
writ petition that he has not been given a copy of the documents that
were relied on and referred to in the charge memo or even the
statement of witnesses. The further grievance of the petitioner that he
was not given a copy of the enquiry report is also not specifically
denied.
11. Thus, there is a clear violation of the principles of equity and
fair play and the petitioner's fundamental right has been violated,
warranting relief from this Court by way of issuance of a writ under
Article 226 of the Constitution of India.
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W.P.No.22850 of 2019
12. The writ petition is, accordingly, allowed. There will be no
order as to costs.
30.06.2023
Index : Yes/No
Neutral Citation : Yes/No
kpl
To
1. The Director
Fire & Rescue Service
17, Rukmani Lakshmipathy Road
Egmore, Chennai 600 008.
2. The Deputy Director (Full Incharge)
Central Region
Tiruchirapalli.
3. The District Officer
Fire & Rescue Service Department
Villupuram District.
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W.P.No.22850 of 2019
P.B.BALAJI,J.
(kpl)
W.P.No.22850 of 2019
30.06.2023
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