Judgment:
THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 25.04.2014 Coram THE HONOURABLE Mr.JUSTICE M.VENUGOPAL W.P.Nos.22111 and 22112 of 2012 *** V.Raghupathy ..Petitioner in W.P.No.22111/2012 C.Dhanasekaran ..Petitioner in W.P.No.22112/2012 versus 1.The Commissioner, Corporation of Chennai, Rippon Buildings, Chennai 600 003.
2.The Assistant Commissioner/Zonal Officer Zone VII (New Zone IX) Nungambakkam, Chennai 600 034.
3.The Appointment Committee Corporation of Chennai Rippon Buildings, Chennai 600 003..Respondents Common PRAYER: Petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records of the 1st Respondent in Proceedings bearing Ma.A.7.Na.Ka.No.A2/9284/2009 dated 18.04.2012 as confirmed by Resolution of the 3rd Respondent in Resolution No.157 & 158/2012 respectively dated 13.06.2012 and quash the same and direct the 1st Respondent to reinstate the Petitioners in service with all attendant benefits like arrears of pay, allowances etc.For Petitioners : Mr.K.S.Viswanathan For Respondents : Mr.R.Arunmozhi COMMON ORDER
The Petitioners have preferred the instant Writs of Certiorarified Mandamus in calling for the records of the 1st Respondent in Proceedings bearing Ma.A.7.Na.Ka.No.A2/9284/2009 dated 18.04.2012 as confirmed by the 3rd Respondent in Resolution Nos.157 & 158/2012 respectively dated 13.06.2012 and to quash the same.
Further, they have sought for passing of an order by this Court in directing the 1st Respondent to reinstate the Petitioners in service with all attendant benefits like arrears of pay, allowances.
2.The Writ Facts: (i)The Petitioners were joined the services of the Respondent Corporation in the year 1991 as DriveRs.They were placed under suspension on 27.10.2003 by the 2nd Respondent on the allegation that they were responsible for theft of diesel from Lorry bearing Nos.TN-T4-F-5688 and TN-04-B-4169 respectively on 11.09.2003.
Immediately, they made representation on 27.10.2003 itself denying the charges and requested for reinstatement.
But the 2nd Respondent issued a charge memo on 31.10.2003 to the Petitioners stating that they were responsible for theft of diesel from lorry bearing Nos.TN-T4-F-5688 and TN-04-B-4169 respectively, for causing loss to the administration of the Corporation of Chennai and bringing disrepute, abuse of position and indiscipline and for violating the Conduct Rules of the Corporation.
(ii)The Petitioners on 07.11.2003 submitted a detailed explanation to the Charge Memo dated 31.10.2003 by stating that the measurement of the diesel quantity at the time of taking the Lorry out from Zone VII was 1 = inches and 1 inch and thereafter, they were given 50 liters of Diesel and 18 liters of diesel towards trips for dumping Garbage from LGTP to Perungudi.
When they entrusted the Lorry back at Zone VII Lorry Station, the measurements were 2 = and 1 of inches of diesel and these measurements were entered in the registers kept for the purpose in the Lorry Station itself.
Further, a mere comparison of diesel measurements with the quantity of diesel allowed for the said vehicles on 11.09.2003 would show that they had not stolen any diesel as alleged.
(iii)In regard to the charges 2 to 4, the Petitioners contend that they had not caused any loss or disrepute to the Corporation and always discharged their duties sincerely as directed by their superiORS.By an order dated 13.11.2003, the order of suspension was revoked and they were reinstated in service pending enquiry.
An Inquiry Officer was also appointed and the enquiry in respect of the Petitioners was fixed on 17.12.2003.
There was a common enquiry.
The Inquiry Officer after a detailed enquiry held that none of the charges against the Petitioners were proved and as such, exonerated them from all the charges.
The Inquiry Officer submitted his report to the 1st Respondent on 09.11.2006.
They submitted their further explanation on 11.12.2006 in response to the said report.
(iv)After a long delay on 11.01.2008 the 1st Respondent, instead of acting on the Inquiry Officer's report and passing final orders thereon, directed the Inquiry Officer to conduct a re-enquiry into the same charges.
The Inquiry Officer again conducted a fresh enquiry and submitted his report on 08.09.2008, by which, it was proved that none of the charges against the Petitioners were proved.
(v)Pursuant to the communication dated 11.03.2009 from the 1st Respondent, the 2nd Respondent, through his Memo dated 05.06.2009, called for further explanation from the Petitioners in regard to the Inquiry Officer's report and they submitted further explanation to the same on 15.06.2009.
Thereafter, no further action was taken by the 1st Respondent in order to conclude the disciplinary proceedings.
(vi) The Writ Petitioner in W.P.No.22111 of 2012 filed W.P.No.10196 of 2012 before this Court challenging the Charge Memo in proceedings bearing Ma.A.7.Na.Ka.No.A2/7130/03 dated 31.10.2003 and to quash the same.
Also, he sought for passing of an order by this Court in directing the 1st Respondent to sanction revised pay, dearness allowance and all other benefits payable to him from the year 2003 till date.
(v)On 16.04.2012 this Court was pleased to dispose of the Writ Petition with a direction to the 1st Respondent to consider his representation dated 01.02.2012 on merits and in accordance with law within a period of six weeks from the date of receipt of the copy of the order.
(vi)Immediately thereafter, the Petitioners were served with an order of the 1st Respondent bearing No.Ma.A.7.Na.Ka.No.A2/9284/ 2009 without any date but signed on 18.04.2012 by which the 1st Respondent imposed the punishment of compulsory retirement of service to them.
They preferred an Appeal to the 3rd Respondent/ Appointment Committee, Corporation of Chennai on 20.04.2012 and 23.04.2012 respectively against the order of the 1st Respondent.
(vii)The Petitioners challenged the order of compulsory retirement dated 18.04.2012 in W.P.Nos.12450 and 12494 of 2012 of 2012 before this Court and this Court on 27.04.2012 was pleased to direct the 3rd Respondent to pass appropriate orders on the Appeals dated 20.04.2012 and 23.04.2012 preferred by them.
On 03.07.2012 the 2nd Respondent, by his proceedings bearing No.Ma.A.7 Na.Ka.No.A2/9284/2009 communicated to the Petitioners that the 3rd Respondent, by its Resolution Nos.157 & 158/2012 dated 13.06.2012, had confirmed the punishment of compulsory retirement imposed on the Petitioners by the 1st Respondent, by his proceedings dated 18.04.2012.
3.Counter Pleas of the 1st Respondent (filed also on behalf of the 2nd and 3rd Respondents).(i)The Petitioners were relieved from the post of Driver on 18.04.2012 on Compulsory Retirement as per orders of the Commissioner, vide Proceedings No.Ma.A.7.Na.Ka.No.A2/9284/2009, dated 18.04.2009 for their involved in the theft of Diesel from the 1st Respondent's Lorries bearing Nos.TN-T4-F-5688 and TN-04-B-4169.
(ii)The Petitioners were involved in the theft of diesel from the lorries due to which they were placed under suspension from 27.10.2003 and they were reinstated into service on 13.11.2003 pending finalisation of disciplinary proceedings against them.
Also that, the charges were framed against them and the charge sheets were served on them on 31.10.2003.
The explanations were called for from the Petitioners/Delinquents and in their explanations, they submitted that they had not stolen diesel from the lorries.
The explanations were not satisfactory and therefore, a detailed enquiry was conducted by the Inquiry Officer and all the charges were not proved beyond reasonable doubt.
(iii)The Disciplinary Authority differed with the Inquiry Officer's Report and passed final orders of Compulsory Retirement with effect from 18.04.2012 for the said criminal activities.
In the meanwhile, the Petitioners made representations on 01.02.2012 claiming the benefits and other allowances.
(iv)The Petitioner (in W.P.No.22111 of 2012) filed W.P.No.10196 of 2012 and this Court passed an order directing the 1st Respondent/ Corporation of Chennai to settle pay and allowances and other benefits to the Petitioner.
(v)The final order of Compulsory Retirement was served on the Petitioners on 18.04.2012.
They preferred Appeals before the 3rd Respondent/Appointment Committee of Corporation of Chennai on 20.04.2012 and 23.04.2012 respectively and the Petitioners filed W.P.Nos.12450 and 12494 of 2012 and obtained an order in directing the 3rd Respondent/Appointment Committee to pass appropriate orders on Appeals within the time specified thereunder.
(vi)The 3rd Respondent/ /Appointment Committee of Corporation of Chennai, passed Resolution Nos.157 & 158 of 2012 dated 13.06.2012 by confirming the punishment of Compulsory Retirement issued by the Disciplinary Authority.
As the final order of the Compulsory Retirement was passed by the Disciplinary Authority and the same was confirmed by the Appointment Committee on 13.06.2012, which was served on the Petitioners on 12.07.2012.
All the charges were proved against the Petitioners were proved and final orders were passed after providing reasonable opportunities.
There is no new ground raised in the Appeals before the 3rd Respondent/ Appointment Committee by the Petitioners and the Appeals were rejected.
As such, the Petitioners are not entitled to get any other reliefs in these Writ Petitions.
PetitioneRs.Contentions: 4.The Learned Counsel for the Petitioners submits that the impugned Resolution Nos.157 & 158 of 2012 dated 13.06.2012 confirming the order of the 1st Respondent, awarding punishment of compulsory retirement to the PetitioneRs.suffer from totally non- application of mind.
They were passed in a mechanical manner without assigning any reasons as to why the report of the Inquiry Officer could not be accepted.
5.According to the Learned Counsel for the PetitioneRs.the 3rd Respondent/Appellate Authority failed to examine an important aspect viz., whether the 1st Respondent, who differed from the findings of the Inquiry Officer, has given any cogent and acceptable reasons for differing with the findings of the Inquiry Officer in order to impose the punishment of compulsory retirement from service on the PetitioneRs.6.The Learned Counsel for the Petitioners contends that the 3rd Respondent/Appointment Committee, Corporation of Chennai, by passing the impugned Resolutions, by mechanically accepting the order of the 1st Respondent, has made the Appeal remedy practically a sham and illusory one.
7.The Learned Counsel for the Petitioners draws the attention of this Court that the 1st Respondent/Commissioner, Corporation of Chennai has passed mechanically the impugned order dated 18.04.2012 (in respect of the PetitioneRs.which was prepared in the year 2010 but not served on the Petitioners and signed the same only on 18.04.2012.
8.The Learned Counsel for the Petitioners submits that the 1st Respondent failed to take into account that the enquiry took place in the year 2003 and was completed and a report was submitted on 09.11.2006 holding that none of the charges against the Petitioners were proved.
Thereafter, after a long delay, the 1st Respondent/ Commissioner, Corporation of Chennai ordered re-enquiry on 11.01.2008 on the same charges and the re-enquiry was also completed.
As a matter of fact, the second enquiry report was submitted by the Inquiry Officer on 08.09.2008, by which, it was once again found that none of the charges levelled against the Petitioners were proved.
9.The Learned Counsel for the Petitioners strenuously contends that the witnesses examined on behalf of the 1st Respondent/ Commissioner, Corporation of Chennai had not stated that the Petitioners were responsible for any theft of diesel and in the circumstances, the 1st Respondent had no reason to reject the findings of the Inquiry Officer and come to an independent conclusion of imposing the punishments on the PetitioneRs.Respondents' Submissions: 10.Per contra, the Learned Counsel for the Respondents submits that the final order of the compulsory retirement was passed by the Disciplinary Authority and the same was confirmed by the 3rd Respondent/Appointment Committee of Corporation of Chennai on 13.06.2012 which was served on the Petitioners on 12.07.2012 and in fact, the charges levelled against the Petitioners were proved and final orders were passed after providing reasonable opportunity to the PetitioneRs.Furthermore, the Petitioners had not raised any new grounds in Appeal before the 3rd Respondent/Appointment Committee and the same was rejected.
11.The Learned Counsel for the Respondents makes a forcible submission that if the Disciplinary Authority considers that there is any difficulty in the enquiry i.e.the Enquiring Authority had taken into consideration certain factors without providing an employee an opportunity to defend himself.
In that regard, the Disciplinary Authority may, for reasons to be recorded by him/it in writing, remit the case to the Enquiring Authority for further enquiry and report.
Thereupon, the Enquiry Authority should then proceed to hold further enquiry according to the provision of Rule 17(b)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
Also, the Learned Counsel for the Respondents refers to the 9(2).of the [Chennai].(substituted for the word Madras by Tamil Nadu Act 28 of 1996) Corporation Clause III and Class IV Service (Discipline and Appeal].Bye-laws, which speaks of 'Procedure for imposing penalties'.
Discussions and Findings: 12.At this stage, a perusal of the contents of the Inquiry Officer Report dated 09.11.2006 of the Enquiry in respect of the Petitioners clearly indicate latently and patently that the Inquiry Officer came to the resultant conclusion that the charges levelled against the Petitioners were not proved.
However, the Inquiry Officer's Report was not accepted and further that, as per the Note of the 2nd Respondent/ Zonal Officer VII dated 19.02.2008, the Re-enquiry Report was asked for in respect of the Petitioners/Delinquents.
13.The Inquiry Officer, while submitting his Re-enquiry Report dated 08.09.2008, had, in candid terMs.in paragraph No.2, stated that since on the side of Management, they expressed their inability to produce new witnesses or documents and as such, he came to the conclusion that the enquiry already conducted was sufficient and therefore, there was no need to conduct re-enquiry/fresh enquiry and accordingly, he furnished the already submitted Enquiry Report as 'Re-enquiry/Fresh Enquiry Report'.
Ultimately, in the 2nd Enquiry Report dated 08.09.2008, the Inquiry Officer had once again came to a categorical conclusion that since there were no sufficient evidence to prove charges against the PetitioneRs.he held that all the charges levelled against them were not proved.
14.The 1st Respondent/Commissioner, Corporation of Chennai, on 09.03.2009 opined that he differed with the view taken by the Inquiry Officer in the Enquiry Report.
15.The 2nd Respondent, in Ma.A.7.Na.Ka.No.A2/9284/9, dated 05.06.2009 addressed to the Petitioners in the Disciplinary Proceedings initiated against them, the Inquiry Officer, in his Report, [Re-enquiry Report].has stated that the charges were not proved against the Petitioners and the 1st Respondent/Commissioner, Corporation of Chennai has ordered that since the Petitioners were caught red-handed while stealing diesel and as such, the Inquiry Officer's Report was not accepted and therefore sought for the additional explanation from the Petitioners within seven days.
The Petitioners submitted their explanations dated 15.06.2009.
Since no action was taken by the 1st Respondent to conclude the disciplinary proceedings, the Petitioners submitted individual representations dated 01.02.2012 to the 2nd Respondent requesting for disbursement of arrears of pay and other allowances herein granted to them in lieu of the pendency of disciplinary proceedings.
16.The Petitioner (in W.P.No.22111 of 2012) later on filed W.P.No.10196 of 2012 challenging the Charge Memo in proceedings No.Ma.A.7.Na.Ka.No.A2/7130/03 dated 31.10.2003 and sought for sanction of his Revised Pay, Dearness Allowance etc.payable to him from the year 2003 till date.
However, this Court, on 16.04.2012 in W.P.No.10196 of 2012 directed the 1st Respondent to dispose of the representation of the Petitioner dated 01.02.2012 on merits and in accordance with law within a period of six weeks from the date of receipt of copy of the order.
17.It transpires that on 18.04.2012, the 1st Respondent passed an order of compulsory retirement in respect of the Petitioners and also directed that the period of temporary suspension to be treated as leave without salary.
He also granted liberty to the Petitioners to prefer an Appeal, within 60 days against the order of compulsory retirement dated 18.04.2012, before the 3rd Respondent/Appointment Committee, Corporation of Chennai, Chennai.
18.The Petitioners preferred W.P.Nos.12450 and 12494 of 2012 and on 27.04.2012, this Court disposed of the Writ Petitions by issuing directions to the Appellate Authority attached to the 1st Respondent [3rd Respondent in the present Writ Petitions].to consider their Appeals dated 20.04.2012 and 23.04.2012 and pass orders on merits and in accordance with law within a period of three months.
19.The 3rd Respondent, on 13.06.2012, in Resolution Nos.157 & 158 of 2012 [signed on 18.06.2012]., after considering the Appeals preferred by the PetitioneRs.take into consideration that the explanations submitted by the Petitioners were found to be unsatisfactory and finally confirmed the punishment of compulsory retirement awarded by the Commissioner in respect of the Petitioners and the same was informed to the Petitioners as per communication of the 2nd Respondent dated 03.07.2012.
20.It is to be pointed out that the success of any disciplinary case squarely depends upon the soundness of the charges framed.
In fact, the charges are in turn cemented on imputations so that if the allegations or imputations are levelled against a Delinquent based on solid unshakeable evidence, then, the chances of successful conclusion of the proceedings are highly enhanced.
The well settled proposition of law is that 'a mere suspicion can never take the place of proof and evidence' as per decision of the Hon'ble Supreme Court in State of Madras V.
Srinivasan, A.I.R.1966 SC1827 Also, it is not useful to serve a charge sheet which is not based on a clear-cut evidence.
21.It cannot be lost sight of that the term 'Disciplinary Authority' has a twin meaning.
For awarding major penalties, it can be the 'Appointing Authority'.
However, for issuing charge sheet etc.it can be any authority competent to impose penalties.
Where Head of the Department is competent to impose some of the penalties, then, he is competent to issue the charge sheet and the Appointing Authority can award the punishment of dismissal as per the decision of the Hon'ble Supreme Court in Union of India V.
F.A.Munaf, 1968 FLR14(SC).22.It is to be noted that Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 does not provide for conduct of fresh enquiry.
However, in view of the decision of the Hon'ble Supreme Court in K.R.Deb V.
The Collector of Central Exercise, Shillong, AIR1971Supreme Court 1447, if in a particular case that there was no proper enquiry because some serious defects had crept into the inquiry or some important witnesses were not examined for some other reasons, the Disciplinary Authority may ask the Inquiry Officer to record further evidence.
There can be no de novo enquiry.
As a matter of fact, the aforesaid Supreme Court decision was also followed in the decision in Shri Gulab Singh V.
Union of India and otheRs.2000 (1) (CAT) SLJ381(New Delhi).23.As far as the present cases are concerned, the Inquiry Officer submitted a fiRs.Enquiry Report on 09.11.2006.
Again when Re-enquiry was ordered at the instance of the 1st Respondent/ Commissioner, Corporation of Chennai, the Inquiry Officer submitted his second Enquiry Report on 08.09.2008.
In both the Enquiry Report, the Inquiry Officer ultimately came to the conclusion that the charges levelled against the Petitioners were not proved.
In view of the decisions cited supra, this Court is of the considered view that in law, there cannot be either a de novo enquiry or a re-enquiry in respect of the Petitioners on the same charges.
As such, the differing view taken by the 1st Respondent/Commissioner, Corporation of Chennai, for the reasons assigned by him in the impugned order dated 18.04.2012, cannot stand a moment scrutiny in the eye of law.
Equally, the 3rd Respondent, in the impugned Resolution Nos.157 & 158/2012 dated 13.06.2012, stating that the 1st Respondent's/Commissioner, Corporation of Chennai Note dated 07.06.2012 was read over and finally, on considering the Appeals preferred by the PetitioneRs.the gravity of charges and the explanations submitted by them were found unsatisfactory and the confirmation of orders of compulsory retirement awarded by the Administration are illegal, invalid and unsustainable in law.
As such, this Court, to prevent an aberration of Justice, interferes with the impugned orders of the 1st Respondent, dated 18.04.2012 and the 3rd Respondent, dated 13.06.2012 [signed on 18.06.2012].and sets aside the same, in furtherance of substantial cause of Justice.
Consequently, the Writ Petitions succeed.
24.In the result, the Writ Petitions are allowed, leaving the parties to bear their own costs.
The 1st Respondent is directed to reinstate the Petitioners into service and to confer them with all consequent attendant benefits, like arrears of pay and allowances etc.within a period of six weeks from the date of receipt of copy of this order.
25.04.2014 Index :Yes Internet :Yes Sgl To 1.The Commissioner, Corporation of Chennai, Rippon Buildings, Chennai 600 003.
2.The Assistant Commissioner/Zonal Officer Zone VII (New Zone IX) Nungambakkam, Chennai 600 034.
3.The Appointment Committee Corporation of Chennai Rippon Buildings, Chennai 600 003.
M.VENUGOPAL,J.
Sgl Orders in W.P.Nos.22111 and 22112 of 2012 25.04.2014