Madras High Court
The State Of Tamil Nadu Rep.By Its vs N.Dhanapal on 31 March, 2023
W.A.No. 2949 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.03.2023
Coram
THE HON'BLE MR JUSTICE D. KRISHNAKUMAR
AND
THE HON'BLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI
W.A.No. 2949 of 2019
and
WMP.Nos. 15950 & 15270 of 2019
1.The State of Tamil Nadu Rep.by its
The Principal Secretary to the Government
Tourism, Culture and Religious,
Endowments Department,
Fort St.George, Chennai-600009.
2.The Principal Secretary/Commissioner
Hindu Religious and Charitable Endowments
Department, College Road,
Nungambakkam, Chennai -600034. ..Appellants.
Vs
1.N.Dhanapal
2.Additional Commissioner (Enquiry)
O/o. The Commissioner
Hindu Religious and Charitable Endowment Department,
No. 119, Uthamar Gandhi Salai,
Nungambakkam, Chennai-600034. ..Respondents
Prayer : Writ Appeal has been filed under Clause 15 of the Letters Patent to
set aside the order dated 26.06.2018 made in W.P.No. 44110 of 2016.
For Appellants : Mr.R.Shanmugasundaram, AG
Assisted by
Mr.N.R.R.Arun Natarajan – Spl.GP
https://www.mhc.tn.gov.in/judis
1/20
W.A.No. 2949 of 2019
For respondents : Mr. R.Singaravelan, Senior Counsel
For
Mr.A. Palaniappan – R1
No appearance – R2
JUDGMENT
[Judgement of the Court was made by D.KRISHNAKUMAR,J.]
Challenging the order passed by the learned Single Judge in W.P.No.
44110 of 2016, dated 26.06.2018, the instant writ appeal has been preferred
by the appellant /department.
Brief facts :
2.1 The 2nd appellant/Commissioner, HR&CE, Chennai framed charges
(9 in numbers) under Rule 17(b) of the Tamil Nadu Civil Servants (Discipline
and Appeal) Rules against the 1st respondent/writ petitioner and issued
charge memo in Na.ka.No. 23785/2013/B1, dated 13.06.2013 for violation
of Rules and proceeded with departmental enquriy. Pending aforesaid
departmental enquriy, the 1st respondent was placed under suspension vide
G.O. No.(D) 71, dated 05.07.2013. Subsequently, additional charge memo ,
framing additional charges (4 in numbers) against the 1st respondent/writ
petitioner came to be issued by the 2nd appellant in
Na.Ka.No.23785/2013/B1, dated 07.10.2013. The 1st appellant/Government
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
vide G.O.(D) No.140, dated 16.09.2015 has appointed an enquiry officer to
enquire into the charges framed against the 1st respondent.
2.2. The 1st respondent/writ petitioner has filed a writ petition in
W.P.No. 23023 of 2014 and W.P.No. 28937 of 2014, challenging the charge
memo and appointment of the enquiry officer. Those writ petitions came
to be disposed of by order dated 16.10.2015 based on the undertaking given
by the respondent that they will follow the principles of natural justice and
procedure as contemplated under the Rules.
2.3 Pursuant to the aforesaid order of this Court, an enquiry officer
has been appointed by the Government in G.O.(D) No. 150, dated
07.10.2015. The enquiry officer has conducted enquiry and based on the
statements of the executive officer and other documents, the enquiry
officer found that the charges framed against the writ petitioner are proved
and the said enquiry report dated 20.02.2016 has been submitted to the 1 st
appellant therein. On receipt of the said enquiry report, the 1st appellant
has issued show cause notice 25.11.2016, which was under challenge in W.P.
No. 44110 of 2016. After hearing the submissions made by the parties
concerned, the learned Single Judge allowed the said writ petition on the
ground that the appellant-department did not follow the procedures and
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
not furnished copies of documents to the writ petitioner as per rules.
Challenging the said order of the learned Single Judge, the intra court
appeal has been preferred by the appellant-department.
3. The learned Advocate General appearing for the appellants would
submit that the learned Single Judge has gone into entire charges and
findings of the enquiry officer and came to conclusion that the charges
framed against the 1st respondent/writ petitioner are vague and quashed
the enquiry officer's report dated 28.04.2016. According to the appellants
the writ Court ought not to have allowed the writ petition and quashed the
entire charges framed against the writ petitioner/1st respondent. The 1st
appellant being the disciplinary authority, provisionally accepted the
findings of the enquiry officer/2nd respondent herein.
4. The learned Advocate General appearing for the appellants would
further submit that the said show cause notice has been served on the 1st
respondent/writ petitioner for submitting explanation on the enquiry
officer's report. The list of documents relied upon for framing charges were
enclosed as Annexure-III of the charge memo, but there is no oral evidence
except the documentary evidence. The enquiry officer proceeded with the
enquriy after providing the documents required by the 1st respondent/writ
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
petitioner. According to the appellant, sufficient opportunity has been
granted to the 1st respondent/writ petitioner during enquiry proceedings.
The learned Single Judge without considering the above aspects, quashed
the entire proceedings, which is against the various decisions of the Hon'ble
Supreme Court as well as this Court.
5. The learned Advocate General appearing for the appellants would
further submit that quashing of entire enquiry report by allowing the writ
petition is unsustainable in law. This court under judicial review cannot
quash the entire disciplinary proceedings on the ground of violation of
procedure. In such circumstances, it can be interfered with by this court,
giving directions the disciplinary authority to conduct fresh enquiry by
appointing a new enquiry officer, therefore, the order of the learned single
is liable to be set aside.
6. The learned senior counsel appearing for 1st respondent/writ
petitioner strenuously objected the submissions made by the learned
Advocate General and submitted that there are no witnesses shown in the
list of Annexure enclosed with the charge memo as contended by the
learned Advocate General. The learned senior counsel for the 1st
respondent also drew the attention of this Court the Rule 17(b) of the Tamil
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
Nadu Civil Services (Discipline & Appeal ) Rules and submitted that the said
procedure was not followed by the appellants while conducting the
disciplinary proceedings. Apart from that the appellant department has
given under taking before this Court in W.P.No. 23023 & 23024 of 2014,
dated.10.06.2016 that they will follow the principles of natural justice
during the course of enquiry.
7. The learned senior counsel would further submit that by relying
upon the statement given by the executive officer/Joint Commissioner, the
enquriy officer, without following the procedure, held the charges proved
against the 1st respondent/writ petitioner, but the said copy of statement of
executive officer was not furnished to him. The aforesaid executive
officer/Joint Commissioner was also not shown as witness in the annexure
of the charge memo, therefore there is no occasion for the 1 st respondent to
sought for said documents for giving reply for the said statement of the
officer.
8. The learned senior counsel for the 1st respondent would further
submit that since the aforesaid statement is the basis for the enquiry
officer to come to a conclusion to prove the charges as against the 1st
respondent/writ petitioner, the 1st respondent is entitled to receive the
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
said copy of the documents. As per the procedure, after furnishing the
relevant documents, and after granting opportunity to the 1st respondent to
submit his explanation, the report has to be submitted by the enquiry
officer to the Disciplinary Authority. The said procedure was not followed
by the 2nd respondent/enquiry officer. Therefore, the enquiry officer has
violated the procedures as contemplated under Rules while proving the
charges against the 1st respondent/writ petitioner and the consequential
show cause notice issued by the 1st appellant by merely approving the said
enquiry report is liable to be set aside. The learned Single Judge has gone
into the gravity of the charges and found that there is no evidence to
establish by the 2nd respondent/enquiry officer to come to such conclusion
to prove the charges against the petitioner and rightly quashed both the
enquiry report as well as the proceedings of the 1st respondent dated
25.11.2016. Therefore, the impugned order passed by the learned Single
Judge does not require any interference by this Court.
9. The point for consideration in the present appeal is that the order
of the learned Single Judge in allowing the writ petition on the ground that
the enquiry officer's report is vitiated in the absence of evidence is valid or
not?
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
10. Heard Mr.R.Shanmugasundaram, learned Advocate General
appearing for the appellants and Mr.R.Singaravelan, learned senior counsel
appearing for the 1st respondent and perused the entire materials available
on record.
11. The contention of the learned Advocate General appearing for
the appellant is that the writ Court cannot gone into the merits of the case
when such impugned show cause notice has been issued to the 1st
respondent. If he being aggrieved, the delinquent/writ petitioner should
have raised all the grounds by way of explanation before the 1 st appellant
and it is for the 1st appellant to consider the said explanation submitted by
him. Without exhausting such remedy, he had approached this Court
challenging the impugned show cause notice, which came to be allowed by
the learned Single Judge, which is unsustainable and without any
justification. The learned Advocate General made submission that if the
learned Single Judge felt that the enquiry was not conducted properly by
the enquiry officer, the learned Single Judge ought to have remit the
matter for fresh enquiry, but the learned Single Judge quashed the entire
enquiry report, which according to the learned Advocate General is un
sustainable in law and warranting interference by this Court.
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
12. The learned senior counsel appearing for the 1st respondent in
reply contends that the allegations made against them are unfounded and
lacking in specific evidence. The learned senior counsel would further
submit that the enquiry officer relied solely on the unsubstantiated
statement of the executive officer to conclude that the charges framed
against the first respondent are valid. Therefore, the decision taken by the
enquiry officer and the disciplinary authority without disclosing any relevant
information to the first respondent amounts to a clear violation of the
principles of natural justice.
13. The learned Advocate General appearing for the appellants
argued that based on the request of the 1st respondent/writ petitioner, the
said documents were furnished to him and obtained acknowledgment. The
further argument put forth by the learned Advocate General further is that
although the first respondent has accused one P. Dhanapal, who was the
then Joint Commissioner of the HR & CE Department, of legal malice, he
has not been named as a party in the writ petition.
14. We have perused the entire documents and We do not find the
copy of the said statement of the executive officer furnished to the 1st
respondent/writ petitioner. A perusal of the enquriy report would clearly
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
reveals that the enquiry officer only by relying on the statement of the
executive officer which is alleged to have been furnished to the 1st
respondent/writ petitioner, came to the conclusion that the charges are
proved. Even though the learned Additional Advocate General has made an
attempt that once a questionnaire is given in response to the charge memo,
the 1st respondent/writ petitioner cannot ask for any documents. We are
unable to accept the said submission.
15. At this stage, it is relevant to refer a recent decision of the
Hon'ble Supreme Court in the case of The State of Uttar Pradesh and
Others Vs.Rajit Singh (Civil Appeal Nos. 2049 & 2050 of 2022, dated
22.03.2022), in which the Hon'ble Supreme Court had considered its earlier
decision in the case of Chairman, Life Insurance Corporation of India Vs.
A. Masilamani is required to be referred to. In paragraph 15, it is
observed and held as under:-
“15. It appears from the order passed by the Tribunal that the
Tribunal also observed that the enquiry proceedings were against
the principles of natural justice in as much as the documents
mentioned in the charge sheet were not at all supplied to the
delinquent officer. As per the settled proposition of law, in a case
where it is found that the enquiry is not conducted properly
and/or the same is in violation of the principles of natural justice,
in that case, the Court cannot reinstate the employee as such and
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
the matter is to be remanded to the Enquiry Officer/Disciplinary
Authority to proceed further with the enquiry from the stage of
violation of principles of natural justice is noticed and the enquiry
has to be proceeded further after furnishing the necessary
documents mentioned in the charge sheet, which are alleged to
have not been given to the delinquent officer in the instant case.
In the case of Chairman, Life Insurance Corporation of India v. A.
Masilamani, (2013) 6 SCC 530, which was also pressed into service
on behalf of the appellants before the High Court, it is observed in
paragraph 16 as under:—
“16. It is a settled legal proposition, that once the court sets
aside an order of punishment, on the ground that the enquiry
was not properly conducted, the court cannot reinstate the
employee. It must remit the case concerned to the
disciplinary authority for it to conduct the enquiry from
the point that it stood vitiated, and conclude the same.
(Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee
Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293],
U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and
Union of India v. Y.S. Sadhu [(2008) 12 SCC 30]).”
16. Yet another decision of the Hon'ble Supreme Court in the case of
Chairman, State Bank of India & another Vs. M.J. James (Civil Appeal
No. 8223 of 2009, dated 16.11.2021) reported in (2022) 2 SCC 301, has
held in detail regarding breach of natural justice. The relevant paragraphs
are extracted hereunder;
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
29. Legal position on the importance to show prejudice to
get relief is also required to be stated. In State Bank of
Patiala v. S.K. Sharma [State Bank of Patiala v. S.K. Sharma,
(1996) 3 SCC 364] a Division Bench of this Court distinguished
between “adequate opportunity” and “no opportunity at all”
and held that the prejudice exception operates more
specifically in the latter case. This judgment also speaks of
procedural and substantive provisions of law embodying the
principles of natural justice which, when infracted, must
lead to prejudice being caused to the litigant in order to
afford him relief. The principle was expressed in the
following words : (SCC p. 389, para 32)
“32. Now, coming back to the illustration given by us in
the preceding paragraph, would setting aside the
punishment and the entire enquiry on the ground of
aforesaid violation of sub-clause (iii) be in the interests
of justice or would it be its negation? In our respectful
opinion, it would be the latter. Justice means justice
between both the parties. The interests of justice
equally demand that the guilty should be punished and
that technicalities and irregularities which do not
occasion failure of justice are not allowed to defeat the
ends of justice. Principles of natural justice are but the
means to achieve the ends of justice. They cannot be
perverted to achieve the very opposite end. That would
be a counterproductive exercise.”
31. In State of U.P. v. Sudhir Kumar Singh [State of
U.P. v. Sudhir Kumar Singh, (2021) 19 SCC 706 : 2020 SCC
OnLine SC 847] referring to the aforesaid cases and several
other decisions of this Court, the law was crystallised as
under : (SCC para 42)
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
“42. An analysis of the aforesaid judgments thus reveals:
42.1. Natural justice is a flexible tool in the hands of
the judiciary to reach out in fit cases to remedy
injustice. The breach of the audi alteram partem rule
cannot by itself, without more, lead to the conclusion
that prejudice is thereby caused.
42.2. Where procedural and/or substantive provisions of law
embody the principles of natural justice, their infraction per
se does not lead to invalidity of the orders passed. Here
again, prejudice must be caused to the litigant, except in the
case of a mandatory provision of law which is conceived not
only in individual interest, but also in public interest.
42.3. No prejudice is caused to the person complaining of the
breach of natural justice where such person does not dispute
the case against him or it. This can happen by reason of
estoppel, acquiescence, waiver and by way of non-challenge
or non-denial or admission of facts, in cases in which the
Court finds on facts that no real prejudice can therefore be
said to have been caused to the person complaining of the
breach of natural justice.
42.4. In cases where facts can be stated to be admitted or
indisputable, and only one conclusion is possible, the Court
does not pass futile orders of setting aside or remand when
there is, in fact, no prejudice caused. This conclusion must
be drawn by the Court on an appraisal of the facts of a case,
and not by the authority who denies natural justice to a
person.
42.5. The “prejudice” exception must be more than a mere
apprehension or even a reasonable suspicion of a litigant. It
should exist as a matter of fact, or be based upon a definite
inference of likelihood of prejudice flowing from the non-
observance of natural justice.”
17. On the facts of the case, the contention of the learned senior
counsel appearing for the 1st respondent/writ petitioner is that the enquiry
officer has not furnished any documents to the writ petitioner and the list
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
of witnesses was also not furnished to the 1st respondent/writ petitioner
before concluding the charges as proved against him. On perusal of
documents, it is revealed that the enquiry report was provided to the 1st
respondent/writ petitioner at the time of serving show cause notice to him.
The writ petitioner/1st respondent was not made aware of the executive
officer's statement, which was relied on by the enquiry officer in arriving at
his conclusion to prove the charges. Despite the absence of this crucial
document, the enquiry officer proceeded to establish the charges against
the 1st respondent, and the same was provisionally accepted by the 1st
appellant, who subsequently issued the impugned show cause notice. In
light of these circumstances, We are of the opinion that the enquiry
officer's report violates the principles of natural justice due to his failure to
provide the vital document viz., the executive officer's report , to the 1st
respondent.
18. A perusal of the findings of the enquiry officer's report and
discussion made in respect of charges framed against the 1st
respondent/writ petitioner also clearly reveals that the said charges are
vague and as rightly contended by the learned senior counsel for the 1st
respondent, the list of documents and witnesses relied on by the enquiry
officer to come to such a conclusion to prove the charges was not
mentioned in the annexure of the charge memo.
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
19. As per Rule 17(b) of Tamil Nadu Civil Services (Discipline &
Appeal) Rules, 1955 “even if a person charged has waived an oral inquiry,
such enquiry shall be held by the authority concerned in respect of charges
which are not admitted by the person charged and which can be proved
only through the evidence of witnesses. At that inquiry oral evidence shall
be heard as to such of the allegations as are not admitted, and the person
charged shall be entitled to cross-examine the witnesses to give evidence in
person and to have such witnesses called, as he may wish provided that the
officer conducting the inquiry may, for special and sufficient reason to be
recorded in writing, refuse to call a witness. Whether or not the person
charged desired or had an oral inquiry, he shall be heard in person at any
stage if he so desires before passing final orders.”
20. In the present case on hand, as discussed in detail above, no such
opportunity has been granted to the 1st respondent/writ petitioner as per
the procedure contemplated under above Rules 17(b) of Tamil Nadu Civil
Services (Discipline & Appeal) Rules, 1955 which clearly describes that the
person charged has the right to be heard in person at any stage before
passing final orders. Therefore, it is a clear case of abuse of law and
violation of principles of natural justice.
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
21. In such circumstances, this court, however accepts the
contention of the learned Advocate General appearing for the appellants
that the writ Court has gone into the entirety of charges and quashed the
enquiry officer's report as well as the consequential show cause notice
issued by the 1st appellant, in view of the aforesaid discussions, it is clearly
proved that the enquiry report was concluded against the 1st respondent
without furnishing the required documents, which claimed to have been
furnished. This is a clear violation of principles of natural justice. To that
extent, the order of the learned Single Judge requires interference by this
Court.
22. Therefore, by relying upon the aforesaid provisions of Rule 17(b)
of Tamil Nadu Civil Services (Discipline & Appeal) Rules, 1955 and the
decisions of the Hon'ble Supreme Court cited supra, without any hesitation,
We have come to the conclusion that the enquiry proceedings concluded as
against the 1st respondent/writ petitioner violates the principles of natural
justice and without following the procedure as contemplated under Rule
17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules. Therfore, as
observed by the Hon'ble Supreme Court in the decision cited supra, in a
case where it is found that the enquriy is not conducted properly and/or the
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
same in violation of the principles of natural justice, this Court cannot
judicially set aside the punishment order. It must remit the case to the
authority concerned to conduct enquiry afresh and conclude the same.
23. Taking into account the facts and circumstances of the case, as
well as the established principles laid down by the Hon'ble Supreme Court in
various decisions, ordinarily a Court does not interfere against the issuance
of a show cause notice unless the same, exfacie or on the basis of the facts,
does not disclose the offence, alleged to have been committed; show cause
notice is otherwise without jurisdiction; suffers from incurable infirmity; is
contrary to the judicial decisions or decisions of the Tribunal and lack of
material justifying issuance of the show cause notice. On the aforesaid
grounds, the writ court can interfere at the stage of issuance of show cause
notice.
24. In light of this, and as discussed earlier, in the interest of
justice, a fresh enquiry must be conducted from the point that it stood
vitiated, and conclude the same. In view of the same, the order passed by
the learned Single Judge in W.P. No. 44110 of 2016, dated 26.06.2018, is
liable be to set aside.
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
24. Accordingly, the impugned order of the learned Single Judge in
W.P. No.44110 of 2016, dated.26.06.2018 is set aside. Consequently, the
Writ Appeal is partly allowed with the following directions;
i. The 1st appellant is directed to appoint an enquiry officer
immediately to enquire into allegation made against the 1st
respondent/writ petitioner, within a period of two (2) weeks
from the date of receipt of a copy of this order.
ii. The newly appointed enquiry officer is directed to proceed
with the enquiry afresh after furnishing all the documents as
required by the 1st respondent/writ petitioner and take final
decision based on the explanation submitted by the 1st
respondent and pass appropriate orders, in accordance with
law, within a period of eight (8) weeks thereafter.
iii. It is needless to say that the 1st respondent/writ petitioner shall
make necessary application to the newly appointed enquiry
officer seeking copy of documents required by him, if any,
within a period of two weeks from the date of receipt of a copy
of this order.
iv. No costs. Consequently, connected Miscellaneous Petitions are
closed.
[D.K.K.J.] [K.G.T.J.]
31.03.2023
Speaking/Non Speaking Judgment
Index: Yes/No
ak
Note : Registry is directed to issue a copy of this
order on 09.05.2023
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
To
1.The Principal Secretary to the Government
Tourism, Culture and Religious,
Endowments Department,
Fort St.George, Chennai-600009.
2.The Principal Secretary/Commissioner
Hindu Religious and Charitable Endowments
Department, College Road,
Nungambakkam, Chennai.
3.The Additional Commissioner (Enquiry)
O/o. The Commissioner
Hindu Religious and Charitable Endowment Department,
No. 119, Uthamar Gandhi Salai,
Nungambakkam, Chennai-600034.
https://www.mhc.tn.gov.in/judis
W.A.No. 2949 of 2019
D. KRISHNAKUMAR, J.
AND
K. GOVINDARAJAN THILAKAVADI, J
ak
Judgement in
W.A.No. 2949 of 2019
and
WMP.Nos. 15950 & 15270 of 2019
31.03.2023
https://www.mhc.tn.gov.in/judis
