Madras High Court
G.Venkatramanan (Under Suspension) vs The State Of Tamil Nadu on 24 September, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.13401 & 18718 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 09.09.2024
ORDER PRONOUNCED ON : 24.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).Nos.13401 & 18718 of 2023
and WMP(MD).Nos.11306 & 15540 of 2023
G.Venkatramanan (Under Suspension)
Executive Officer (Special Grade)
Batlagundu Town Panchayat
Dindigul District ....Petitioner in both petitions
Vs
1.The State of Tamil Nadu
Represented by its Principal Secretary to Government
Municipal Administration and Water Supply Department
Secretariat, Chennai
2.The Director of Town Panchayat
Office of the Director of Town Panchayat
Nos.7 & 8th Floor, Town Administrative Office
Raja Annamalaipuram
Chennai 600 028 ....Respondents in both petitions
Prayer in WP(MD).No.13401 of 2023: This Petition filed under Article 226
of the Constitution of India, to issue a writ of Certiorarified Mandamus
calling for the records relating to the impugned notice passed by the second
respondent vide his proceedings in Na.Ka.No.6950/2020-1/Uu3 dated
12.05.2023 and the consequential impugned order issued by the second
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W.P(MD).No.13401 & 18718 of 2023
respondent vide his proceedings in Roc.No.6663/2023/A1 dated 30.05.2023
and the consequential impugned order issued by the second respondent vide
his proceedings in Roc.No.6663/2023/A1 dated 31.05.2023 and quash the
same as illegal and consequentially to direct the respondents to allow the
petitioner to retire on 31.05.2023 with all other monetary and retirement
benefits within the period that may be stipulated by this Court.
Prayer in WP(MD).No.18718 of 2023: This Petition filed under Article 226
of the Constitution of India, to issue a writ of Certiorari calling for the
records relating to the impugned notice passed by the second respondent vide
his proceedings in Na.Ka.No.1615/2020-1/Uu3 dated 06.07.2023 and quash
the same as illegal.
( In both petitions)
For Petitioner : Mr.M.Ajmalkhan
Senior Counsel
For M/s.Ajmal Associates
For Respondents : Mr.Veera.Kathiravan
Additional Advocate General
assisted by Mr.S.Shanmugavel
Additional Government Pleader
COMMON ORDER
The petitioner herein has lastly served as Executive Officer of
Batlagundu Town Panchayat , Dindigul District.
(A).Facts leading to the filing of the writ petitions are as follows:
2.The petitioner was issued with two charge memos on 28.02.2020 and
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W.P(MD).No.13401 & 18718 of 2023
12.08.2021. After completion of enquiry under both the charge memos, two
separate enquiry reports were submitted by the enquiry officer on 09.12.2022
before the second respondent in the writ petitions. When the petitioner was
about to attain superannuation on 31.05.2023, he was suspended by the
second respondent on 30.05.2023 and his services were extended by an order
dated 31.05.2023 invoking Rule 56(1)(c) of Fundamental Rules.
3.The enquiry officer has exonerated the petitioner of all the 10 charges
which were inflicted upon the writ petitioner by way of charge memo dated
28.02.2020. The enquiry officer has exonerated the petitioner of all the 9
charges which were inflicted upon the writ petitioner by way of charge memo
dated 12.08.2021. The second respondent herein by proceedings dated
12.05.2023 has issued a second show cause notice to the writ petitioner
calling upon him to explain why he should not differ from the enquiry report
arising out of charge memo dated 12.08.2021. Another second show cause
notice was issued by the second respondent on 06.07.2023 calling upon
explanation from the writ petitioner why he should not differ from the
enquiry arising out of the charge memo dated 28.02.2020.
4.In W.P(MD).No.18718 of 2023, the second show cause notice dated
06.07.2023 is under challenge. In W.P(MD).No.13401 of 2023, the second
show cause notice dated 12.05.2023, the suspension order dated 30.05.2023
and the retention order dated 31.05.2023 are under challenge.
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W.P(MD).No.13401 & 18718 of 2023
5.Since the issue in both the writ petitions are interconnected, both the
writ petitions are tagged together and a common order is being passed.
(B).Contentions of the counsels appearing on either side:
6.According to the learned Senior Counsel appearing for the writ
petitioner, the second respondent has not assigned any reason whatsoever for
differing with the findings of the enquiry officer. He had further contended
that along with the second show cause notice, the enquiry report was not
furnished. The procedure contemplated under G.O.(Ms).No.81, Human
Resources Management (N) Department dated 04.08.2022 for placing an
employee under suspension a few days prior to the date of his retirement has
not been followed.
7.The learned Senior Counsel had relied upon the judgments reported in
(2011) 6 MLJ 122 (M.Muthu Anand Vs.The Principal Secretary and
Secretary to government, Chennai and another), 2006 1 MLJ 624
( P.Govindan Vs. State of Tamil Nadu and others), (1998) II LLJ 809(SC)
(Punjab National Bank and others Vs. Kunj Behari Misra) and (1999) 7
SCC 739 (Yoginath D.Bagde Vs. Stat eof Maharashtra and another) in
support of his contention that the differing notice is not valid in the eye of
law and hence, he prayed for quashing those differing notices and also to
quash the order of suspension and retention in service and allow the
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W.P(MD).No.13401 & 18718 of 2023
petitioner to retire with effect from 31.05.2023 with all consequential
benefits.
8.Per contra, the learned Additional Advocate General appearing on
behalf of the respondents had contended that the Executive Officer of Town
Panchayat is empowered to spend only a sum of Rs.10,000/- by way of
self-cheque. However, the petitioner has split up the amount and brought
them under Rs.10,000/- and encashed with the same through self-cheque. On
certain days, more than 10 self-cheques have been presented which are
valued less than Rs.10,000/- by splitting up the total amount. This fact is not
in dispute. Therefore, the petitioner himself is aware of all the allegations
made against him. The enquiry officer has not properly appreciated these
documents and has exonerated the petitioner from both the charge memos.
Therefore, the disciplinary authority was constrained to take a different view
and he has sent the impugned second show cause notices to the writ petitioner
calling for explanation from him.
9.The learned Additional Advocate General had further contended that
the second show cause notices are self-explanatory and various details
relating to utilisation of the cheques by the writ petitioner have been
catalogued. Therefore, the question of non-issuing the reasons for taking a
different view do not arise in the present case. He had further contended that,
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W.P(MD).No.13401 & 18718 of 2023
in case, if the petitioner is aggrieved due to non-furnishing of the enquiry
report, a copy of the report would be furnished to the writ petitioner and
reasonable time would be granted to him to offer his explanation to the
second show cause notice.
10.The learned Additional Advocate General had further contended
that the enquiry report in both the cases were submitted only on 09.12.2022
and after going through all the records, the second respondent has issued
differing second show cause notice in the month of May 2023 and July 2023
and therefore, there is no delay on the part of the second respondent in
issuing a second show cause notice. The petitioner has been placed under
suspension on 30.05.2023 and retained him in service by an order dated
31.05.2023. Therefore, the order of suspension and the retention in service, in
view of pendency of the charges as against the writ petitioner are legally valid
and it does not call for any interview.
11.I have considered the submissions made on either side and perused
the material records.
(C).Discussion:
12.A perusal of the impugned second show cause notice in both the
writ petitions which are dated 12.05.2023 and 06.07.2023 reveal that the
second respondent, who is the disciplinary authority has not extracted the
findings of the enquiry officer and he has not assigned any reason for taking a
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W.P(MD).No.13401 & 18718 of 2023
view different from that of the enquiry officer. The disciplinary authority has
simply stated that the charges as against the petitioner have been proved and
therefore, he is taking a different view from that of the findings of the enquiry
officer.
13.The Hon'ble Supreme Court in a judgment reported in (1998) 7
SCC 84 (Punjab National Bank and others Vs. Kunj Behari Misra) in
Paragraph No.18 has held as follows:
“18.......When the disciplinary authority differs with the view
of the inquiry 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 inquiry officer they
are deprived of representing to the disciplinary authority before
that authority differs with the inquiry officer's report and, while
recording 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....”
14.The Hon'ble Supreme Court in a judgment reported in (2008) 9
SCC 31 (Haryana Financial Corporation and another Vs. Kailash
Chandra Ahuja) in Paragraph No.44 has held as follows:
“44.From the aforesaid decisions, it is clear that though
supply of report of Inquiry Officer is part and parcel of natural
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W.P(MD).No.13401 & 18718 of 2023
justice and must be furnished to the delinquent- employee, failure to
do so would not automatically result in quashing or setting aside of
the order or the order being declared null and void. For that, the
delinquent employee has to show `prejudice'. Unless he is able to
show that non-supply of report of the Inquiry Officer has resulted in
prejudice or miscarriage of justice, an order of punishment cannot
be held to be vitiated. And whether prejudice had been caused to the
delinquent- employee depends upon the facts and circumstances of
each case and no rule of universal application can be laid down.”
15.In view of the judgments of the Hon'ble Supreme Court cited supra,
it is clear that the non furnishing of the enquiry report by itself would not
result in setting aside the order of punishment, unless the delinquent
employee pleads and proves that the non-supply of the report has resulted in
prejudice or miscarriage of justice. In all cases where the disciplinary
authority chooses to take a view, different from that of the findings of the
enquiry officer, unless the enquiry report is furnished to the delinquent, the
delinquent will not be in a position to defend himself before the disciplinary
authority.
16.In cases where the disciplinary authority takes a view different from
that of the enquiry officer, mere furnishing of the enquiry report would not be
sufficient, if the second show cause notice does not assign any reason
whatsoever to take a different view from that of the enquiry officer. Only if
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W.P(MD).No.13401 & 18718 of 2023
the reasons are assigned by the disciplinary authority, the delinquent
employee would be in a position to compare the findings in the enquiry report
and reasons assigned by the disciplinary authority in his second show cause
notice for taking a different view and then offer his explanation why the
different view is erroneous or it is not possible, in the light of the findings of
the enquiry report.
17.In the present case as pointed out supra, the enquiry report was not
furnished to the writ petitioner along with second show cause notice. The
second show cause notice has been issued without assigning any reason for
taking a view different from that of the enquiry officer. Merely extracting the
date of transaction in the second show cause notice would not amount to
giving reasons for taking a different view. In such circumstances, the
contention of the learned Additional Advocate General that the second show
cause notice is self-explanatory and no further reason is to be assigned for
taking a different view is not legally sustainable.
18.The non furnishing of the enquiry report, especially in cases where
the disciplinary authority takes a view different from that of the enquiry
officer, would result in causing great prejudice to the delinquent employee. In
such cases, certainly there is a a denial of reasonable opportunity to the
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W.P(MD).No.13401 & 18718 of 2023
employee to prove his innocence and there is a breach of principles of natural
justice. Therefore, the second show cause notices dated 12.05.2023 and
06.07.2023 are hereby set aside.
19.The petitioner herein has been issued with two charge memos on
28.02.2020 and 12.08.2021. In both the cases, enquiry reports have been
submitted on 09.12.2022. Since final orders were not passed before the date
of retirement namely 31.05.2023, the petitioner has been rightly placed under
suspension and a consequential retention order has been passed. Therefore,
this Court is not inclined to set aside the order of suspension or the order of
retention in service.
(D)Conclusion:
20.In view of the above said deliberations, this Court is inclined to pass
the following orders.
(i)W.P(MD).No.18718 of 2023 stands allowed and the show cause
notice dated 06.07.2023 is set aside and the matter is remitted back to the file
of the second respondent to issue a fresh show cause notice incorporating the
reasons for taking a different view from that of the enquiry report.
(ii)W.P(MD).No.13401 of 2023 stands partly allowed with regard to
the prayer challenging the second show cause notice dated 12.05.2023 and
the same is set aside and the matter is remitted back to the file of the second
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W.P(MD).No.13401 & 18718 of 2023
respondent for issuing a fresh second show cause notice incorporating the
reasons for taking a view different from that of the enquiry officer.
(iii)As far as the prayer in W.P(MD).No.13401 of 2023 challenging the
order of suspension dated 30.05.2023 and the retention order dated
31.05.2023 are concerned, the writ petition stands dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
24.09.2024.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
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W.P(MD).No.13401 & 18718 of 2023
To
1.The Principal Secretary
The State of Tamil Nadu
Municipal Administration and Water Supply Department
Secretariat, Chennai
2.The Director of Town Panchayat
Office of the Director of Town Panchayat
Nos.7 & 8th Floor, Town Administrative Office
Raja Annamalaipuram
Chennai 600 028
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W.P(MD).No.13401 & 18718 of 2023
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).Nos.13401 & 18718 of
2023 and WMP(MD).Nos.11306 &
15540 of 2023
24.09.2024
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