B. Navaneetha Kannan vs The Administrator/Managing Director The Pondicherry Co-operative Milk Producer's Union Ltd. and The Registrar of Co-operative Societies

T. Raja, J.—The petitioner B. Navaneetha Kannan has filed the present writ petition initially against the dismissal order passed by the first

respondent in Ref.Ponlait/Estt/P.A. No. 4/2004 dated 25.8.2004 and quash the same and for a consequential direction to the respondents to

reinstate the petitioner in service with all attendant benefits. At the very outset, it is relevant to mention that during the pendency of the Writ

Petition, the petitioner has amended the prayer to quash the order dated 25.08.2004 and the subsequent Appeal Rejection Order passed by the

first respondent in Ref.Ponlait/Estt/P.A. No. 4/2004 dated 30th June 2010 and quash the same, consequently directing the respondents to pay all

the cumulative monetary benefits arising therefrom.

(i) The petitioner joined the services of the Pondicherry Co-operative Milk Producers Union Ltd., as Dairy Assistant in the year 1971 and he

was promoted to the post of Assistant General Manager in the said Union Ltd. While he was serving, he was also holding the additional charge of

the post of Managing Director, Pondicherry Cooperative Milk Producers'' Union during the period from May 1995 to January 2001. For about 5

1/2 years, the petitioner was functioning as Managing Director. While so, he was placed under suspension by proceedings dated 30.6.2002.

Aggrieved by the suspension order, the petitioner filed W.P. No.25595/2002 on the file of this Court under Article 226 of the Constitution of

India. At the time of admission of W.P. No. 25595/2002 itself, the writ petition was withdrawn and the petitioner was reinstated into service on

15.02.2003.

(ii) In the meanwhile, the second respondent has issued a direction to the first respondent to constitute an Expert Panel as per the bye-laws to

select the Managing Director and accordingly, when an advertisement was given in a daily newspaper for the post of Managing Director on

29.10.1999, four applications were received. Out of the same, three were found ineligible as per the terms mentioned in the advertisement and

bye-laws and the petitioner was the only eligible candidate. At that point of time, the second respondent issued a direction to the first respondent

not to consider the petitioner''s application for the post. On that basis, the Expert Panel adjourned the proceedings sine die without appointing the

petitioner. Therefore, the petitioner preferred W.P. No. 18210/1999 against the direction issued by the second respondent not to consider the

petitioner''s application. Subsequently, the first respondent also filed another Writ Petition-W.P. No.4785/1999 against the direction. Both Writ

Petitions were taken up together and, by a common order, dated 5.5.2000, in W.P. No.18210/1999, the impugned direction challenged by the

petitioner dated 9.11.1999 was quashed as prayed by the petitioner and finally, a direction was issued to the Expert Panel to consider the

petitioner and the other Writ Petition- W.P. No.4785/1999 was dismissed.

(iii) Thereafter, when the order of the Court was not properly implemented, the petitioner preferred Contempt Petition Nos.497 and 631 of 2000

and WMP Nos.23143, 23144, 23318 and 18717 of 2000. This Court, by taking up both the Contempt Petitions together passed an order on

22.1.2001, appointing one Mr. Uddipt Ray, I.A.S., Joint Secretary, Government of Pondicherry, as the Special Officer to exercise all powers of

the Chairman, Board of Directors and Managing Director of the Union and also to take all necessary steps to select and appoint the Managing

Director within four months. As a result, the Chairman and the Board of Directors were restrained from acting in their capacity until further orders.

In the meanwhile, the petitioner was directed to go on Special Leave with payment of full salary until further orders. Subsequently, the appointment

of the Special Officer was stayed and the Board was permitted to proceed with the selection of Managing Director. Again, interview for the post

of Managing Director was conducted on 11.6.2001 and one Rajeswaran was selected to the post of Managing Director. But the petitioner''s name

was at the second place in the selection list, thereby, the position was, in case Rajeswaran did not report, the petitioner would be appointed.

However, Rajeswaran was appointed as Managing Director on 11.7.2001. Subsequently, the respondent Management filed W.A.No.315/2001.

By order dated 8.2.2002 the first Bench of this Court passed an order to take back the petitioner''s services. Accordingly, the petitioner joined

services on 1.3.2002 as Assistant General Manager. In view of the aforementioned circumstances by which the petitioner was placed for

appointment to the post of Managing Director, Mr. Rajeswaran started giving trouble from the date of appointment and finally the said Rajeswaran

as Managing Director placed the petitioner under suspension without giving any specific reason on 1.7.2002 which continued till 14.2.2003.

Subsequently, the said Rajeswaran who had grudge against the petitioner has given a newspaper publication in three Tamil dailies asking the public

not to have touch with him. In these circumstances the petitioner was issued with a charge memo containing 9 charges on 12.8.2002 for allegations

that he along with the Chairman took a circuitous route for the Agri.Tech.99 Exhibition at Isreal from 2.9.2000 to 10.9.2000 instead of resorting to

the direct route.

(iv) In the meanwhile, the said Rajeswaran, Managing Director was also placed under suspension by the Deputy Registrar of Co-operative

Societies. Subsequently, the said Deputy Registrar was appointed as Special Officer. Immediately, on receipt of the abovesaid charges, the

petitioner submitted his explanations. The disciplinary authority not being satisfied with the said explanations dated 3.2.2003 ordered for

appointment of the Enquiry Officer to go into the charges framed against the petitioner. The Enquiry Officer also commenced the enquiry on

27.9.2003. On completion of the enquiry, the Enquiry Officer submitted his report on 28.11.2003.

(v) After the Enquiry Officer accepting the explanation offered by the petitioner, the Chairman, by proceedings dated 19.11.2002, had dropped

charges 7 and 8 relating to the price of ghee per kilo gram. Further, the Enquiry Officer not only held that the management has not proved charge

Nos.1 and 2 but also, by accepting the evidence of Mr. Gunasekaran, exonerated the petitioner from charge No.5. In respect of charge No.6, the

Enquiry Officer, acting upon the evidence of Sakthivel, Deputy Manager, came to the conclusion that the loss was not due to the charged officer.

Accordingly, charge No.6 was also not proved. In respect of charge No.5 that he acted against the interest of the Union by placing orders for the

purchase of disposable cups without calling for quotations, the Enquiry Officer exonerated the petitioner. Regarding charges 3 and 4 alleging

inaction of the petitioner against the Junior Assistant G. Arumugam, by accepting the evidence of Mr. G. Arumugam, the Enquiry Officer held that

the management has failed to prove the said charges as well. As regards charge No.9 pertaining to the allegations that the petitioner, during his

suspension went to Chennai leaving the Head quarters, it was specifically held that he went to Lawspet in Pondicherry to consult his lawyer and he

did not leave Pondicherry. Accordingly, Charge No.9 was also dismissed.

(vi) Finally, the Enquiry Officer after thorough enquiry, has come to the conclusion that no charges have been made out and so, concluding

exonerated the petitioner based on the evidence and documents produced by both sides. After submission of the report by the Enquiry Officer, the

respondent ordered for a de novo enquiry for a purported reason that the Enquiry Officer has forwarded the report to the Disciplinary authority

through the Presenting Officer of the Department. Besides, the Disciplinary Authority, after receipt of the enquiry report, while differing from the

report of the enquiry officer, without issuing a show cause notice, calling upon the petitioner to show cause as to why the disciplinary authority

should not ignore such report, hastily proceeded to hold a de novo enquiry. When the disciplinary authority issued an order for holding a de novo

enquiry on 21.1.2004, the petitioner, by filing W.P. No.2394/2004 challenged, the said order on the ground that the disciplinary authority failed to

give an opportunity of representation to the charged employee before differing with the findings, which is against the ruling of the Hon''ble Apex

Court in the decision rendered in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., . This Court, by an interim order, dated

9.2.2004 passed in W.P.M.P.No.2702/2004 in W.P. No.2394/2004 directed that the enquiry may go on, however, to withhold the result till

further orders. Subsequently, the enquiry proceedings were conducted and thereafter, when the petitioner wanted to choose one Dr. T.

Velayutham a retired Government employee as a defence assistant the said request of the petitioner was not considered. Nonetheless, a Writ

Appeal came to be filed in W.A.No.2642/2004.

(vii) Mr. V. Prakash, learned senior counsel further contended that the de novo enquiry proceedings, dated 21.1.2004, shall be held as void-ab-

initio for the reason that the first Enquiry Officer conducted a detailed exhaustive enquiry dealing with all charges from 1 to 9. Except charge Nos.7

and 8 which were already dropped by the Government, the Enquiry Officer categorically found the petitioner ""not guilty"" of any of the charges.

Accordingly, the Enquiry Officer submitted his report on completion of the enquiry. After completion of the first enquiry, the decision to initiate de

novo enquiry dated 21.1.2004, once again subjecting the petitioner to second enquiry, is in total violation of the principles of natural justice and

also against the dictum laid down in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc.,

(viii) As per the judgment of the Constitution Bench when the first enquiry officer''s findings recorded in favour of the delinquent officer are

proposed to be overturned by the disciplinary authority, the principles of natural justice requires that the employee should have a fair opportunity to

meet, explain and to controvert before he is condemned. In other words, it was contended by the learned senior counsel that when the findings in

favour of the delinquent officer are proposed to be overturned by the Disciplinary Authority, a fair opportunity should be granted to the delinquent

officer before the disciplinary authority proceeds to differ with such conclusion, as otherwise, he would be condemned unheard.

(ix) In the present case, curiously, in respect of charges 1 to 6 and charge No.9, a de novo enquiry was ordered and the second enquiry officer

once again proceeded against the petitioner also to deal with charge Nos.7 and 8 which were already dropped by the Chairman, and it was found

that the petitioner was guilty of charge Nos.7 and 8 as well. This approach of the second Enquiry Officer holding the petitioner guilty of even

charge Nos.7 and 8 which were already dropped by the Chairman itself, goes without saying that not only the Enquiry Officer conducted the de-

nove enquiry without application of mind, but also, the disciplinary authority, while passing the dismissal order against the petitioner by accepting

the findings of the second Enquiry Officer, repeated the same irregularities and mistake of non-application of mind in accepting the findings of the

second enquiry officer even though charge Nos.7 and 8 which were already dropped by the Government.

(x) Adding his submission, the learned senior counsel submitted that the learned single judge passed an order dated 20.6.2004, in W.P.

No.2394/2004, directing the respondents to conduct an enquiry on day-to-day basis and complete the same on or before 15.7.2004. Having

aggrieved by the said order the petitioner preferred W.A.No.2642/2004. The First Bench of this Court, by order dated 12.7.2004, directed the

matter to be posted on 19.7.2004 and in the meanwhile, the enquiry may be completed and even the findings can be recorded by the Enquiry

Officer and the same may be placed before the Court in a sealed cover. According to the learned senior counsel appearing for the petitioner, in

spite of such clear and specific direction by the Division Bench of this Court to record only the findings of the enquiry officer, the respondent once

again, defying the order passed by this Court, straight away passed the final order, dismissing the petitioner from service. This shows the second

motivated action against the petitioner.

(xi) Further when W.A.No.2642/2004 was taken up on 20.7.2004, on being apprised of the dismissal order, the Division Bench, after noting that

the petitioner was dismissed from service as against which he had also filed W.P. No.27699/2004, dismissed the Writ Appeal as having become

infructuous, however, with liberty to raise the grounds which have been raised in W.A.No.2642/2004 in the pending Writ Petition-W.P.

No.27699/2004, wherein, the order of dismissal was under challenge. Therefore, the learned senior counsel has submitted that when the Division

Bench has given him liberty to raise all the grounds which have been raised in the W.A.No.2642/2004, in W.P. No.27699/2004 challenging the

order of dismissal, the petitioner is entitled to raise all the issues including the validity of the direction to hold a de novo enquiry against the

petitioner. On that basis, the learned senior counsel has further argued that the entire exercise of the respondent from holding of the de novo

enquiry upto the passing of the dismissal order against the petitioner, is not only unlawful and unjustified, but also a deliberated and motivated move

totally contrary to the dictum laid down by the judgment of the Constitution Bench in B.KARUNAKAR CASE, followed by another judgment of

the Apex Court in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, . Since the respondents have failed to follow the principles of

natural justice by adhering to the proper procedure as mandated by the Supreme Court in B.KARUNAKAR case in the matter of holding de novo

enquiry, the entire disciplinary proceedings resulting from the de novo enquiry shall be declared to be void on the ground of gross violation of

principles of natural justice. On these basis, the learned senior counsel prayed for allowing the present Writ Petition.

3 (i)Per contra, Mr. L. Swaminathan, the learned counsel appearing for the first respondent submitted that when the petitioner suffered

departmental proceedings, an Enquiry Officer by name P. Elangovan, Advocate, was appointed and one Mr. K. Rajamanickam was appointed as

Presenting Officer. Thereafter, the Enquiry Officer after completing the enquiry, submitted his enquiry report to the Presenting Officer without

directly addressing the Disciplinary Authority. The Enquiry Officer by his letter dated 26.12.2003, informed the Disciplinary Authority marking a

copy that he has also submitted an enquiry report to the Presenting Officer. In view of the enquiry officer submitting his report to the Presenting

Officer, instead of the disciplinary authority, the disciplinary authority ordered for a de novo enquiry on 21.1.2004. Aggrieved by the decision

taken to initiate de-novo enquiry, the petitioner filed W.P. No.2394/2004.

(ii) This Court, by an interim order dated 9.2.2004, directed that the enquiry may go on having suspending the result of the same till further orders.

Thereafter, a second charge memo was issued to the petitioner on 18.5.2004. After that, the petitioner wrote a letter to the Disciplinary Authority

informing his request to engage a defence assistance. Since there was no provision for engaging a defence assistant, the enquiry as ordered by this

Court was further proceeded and subsequently, when this Court, by its order dated 28.6.2004, directed the petitioner to appear for the enquiry,

again, the petitioner failed to appear. As against that, when the petitioner filed W.A.No.2642/2004, by order dated 12.7.2004, the Division Bench

of this Court also directed to complete the enquiry and place the findings in a sealed cover. Only on the basis of the said direction the respondent

completed the said enquiry and thereafter the sealed cover was also placed before this Court. Again this Court by order dated 3.8.2004 after

noting that except charge No.9, other charges were held to have been proved, directed the respondent to issue a second show cause notice and,

on receipt of the same, the writ petitioner was also directed to submit his explanation. When this matter was posted after two weeks the

respondent subsequently, on completion of the formalities, passed the dismissal order. Thereafter, when the matter was listed on 27.6.2004, this

Court, by taking note of the fact that the petitioner was dismissed from service and the dismissal order also has been challenged by the petitioner in

W.P. No.27699/2004, by giving liberty to the petitioner to raise all the grounds raised in W.A.No.2642/2004 in the pending W.P.

No.27699/2004, dismissed W.A.No.2642/2004. Therefore, the petitioner is not entitled to re-open the previous enquiry proceedings, which were

concluded on 28.11.2003.

(iii)The learned counsel for the respondent further contended that the petitioner, having caused heavy loss to the respondent, has deliberately

abstained himself from participating in the second denovo enquiry proceedings. Only after completion of the de novo enquiry, the second Enquiry

Officer found him guilty of all the charges except charge No.9 and held that the petitioner has deliberately misused the union funds. Therefore, the

dismissal order cannot be found fault with. On that basis, the learned counsel for the first respondent prayed for dismissal of the writ petition as

devoid of merits.

4.(i) Supporting the stand of the first respondent, Ms. N. Mala, Additional Government Pleader appearing for respondent No.2, adopted the

arguments of the learned counsel appearing for the respondent No.1 and reiterated that the present writ petition has no merit for consideration.

(ii) In support of her submission the learned counsel further pleaded that it is an admitted case that the petitioner was directed to appear for the de

novo enquiry. But, unfortunately, the petitioner did not appear for such enquiry and therefore, the Enquiry Officer, after giving all particulars,

completed the enquiry finding him guilty of all the charges except charge No.9 and thereafter, when an order of dismissal was passed the petitioner

kept quiet without challenging the said dismissal order for about four years. But when he challenged the dismissal order by preferring appeal before

the Administrator of PONLAIT, the appellate authority, on 30.6.2010 dismissed the said appeal dated 28.10.2008. Therefore, the rejection of the

appeal preferred by the petitioner is justified.

Considered the rival submissions as advanced on either side.

The petitioner was originally appointed as Dairy Assistant. After putting in 25 years of service, he was promoted to the post of Assistant

General Manager. The second respondent issued a direction to the first respondent to constitute an Expert Panel as per the bye-law to select the

Managing Director. Accordingly, an advertisement was given in a newspaper for the post of Managing Director on 29.10.1999. When four

applications were received by the respondent including the petitioner''s one, 3 out of the 4 were found ineligible in terms of the advertisement and

the bye-laws. Therefore, the petitioner was the only eligible candidate. But the second respondent issued a direction to the first respondent not to

consider the petitioner''s application for the said post. Accepting the said recommendation, the Expert Panel adjourned the proceedings sine-die

which compelled the petitioner to prefer W.P. No.18210 of 1999 against the direction issued by the said respondent. The first respondent also

preferred another W.P. No.4785/1999 challenging the said direction. This Court, by clubbing both Writ Petitions together passed a common

order on 5.5.2000. While W.P. No.18210/1999 filed by the petitioner was partly allowed with a direction to fill up the post of the Managing

Director without any further delay, the other one viz., W.P. No.4785/1999 was dismissed. Since this Court, in the above order dated 5.5.2000,

has given three months'' time-limit to fill up the post of Managing Director by constituting Expert Panel to select and appoint the Managing Director

according to the bye-laws read with the provisions of the Act and when the respondent failed to implement the order, the petitioner filed Contempt

Petitions in Contempt Application Nos.497 and 631 of 2000. In the said Contempt Applications, this Court, by taking note of the fact that the

order, dated 5.5.2000, passed in W.P. No.18210/1999 was not complied with by constituting an Expert Committee, appointed one Uddipt Ray,

Joint Secretary, Government of Pondicherry, as Special Officer to exercise all the powers of the Chairman, Board of Directors and Managing

Director and to arrange to select and appoint the Managing Director within another four months'' time. The Chairman and the Board of Directors

were restrained from acting in their capacity until further orders. The order passed by this Court in the said Contempt Petitions being the root cause

for these proceedings, is extracted hereunder:

(i) The petitioner, Managing Director in-charge shall keep himself away from the activities of the Pondicherry Cooperative Milk Producers'' Union

in any capacity by proceeding on leave until further orders and shall not in any manner interfere whatsoever with the affairs of the Union or the

management of the union by the Administrator appointed by this Court. However, full salary alone shall be paid to him in the substantive post until

further orders without any other benefit or facility.

(ii) The Chairman of the Pondicherry Co-operative Milk Producers'' Union and the newly elected Chairman or Board of Directors if any, shall also

not act in their respective capacity until further orders of this Court and the Administrator appointed by this court shall act in the place of the Board

or Committee or Committees as well as the Managing Director to manage the affairs of the Society and exercise full control, supervision over the

affairs of the Pondicherry Cooperative Milk Producers'' Union until further orders and the Administrator take all such actions as may be required in

the interest of the Society.

(iii) The Chief Secretary to the Government of Union Territory of Pondicherry is suo-motu impleaded as party to the present writ proceedings.

(iv) Mr. Uddipt Ray, I.A.S., Joint Secretary (Revenue) in the services of the Union Territory of Pondicherry is appointed as the Administrator to

manage and administer, control and supervise every affairs of the Union and also exercise all the powers of the Chairman, Board of Directors and

Managing Director of the said Union or Committee or Committees or of the Cooperative Union and shall be the sole repository exercising powers

until further orders.

(v) The administrator shall initiate immediate action to fill up the post of Managing Director by inviting fresh applications in terms and as per the

byelaws that existed as on 5.5.2000.

(vi) On the communication received from the said Administrator appointed by this court, the National Dairy Development Board, the Government

of Pondicherry shall in the level as prescribed in the byelaws nominate their representatives respectively to be the Committee members and select

the Managing Director of the Pondicherry Cooperative Milk Producers'' Union without delay and take all steps to fill up the said post.

(vii) The Administrator shall be one of selection the committee members as representing the said Cooperative Milk Producers'' Union as its

Chairman or Committee and the Administrator shall be the Coordinator and the representative of the National Dairy Development Corporation

shall be the Chairman of the Selection Committee. The majority decision of the selection committee shall be final and on the majority decision the

candidate selected shall be appointed as Managing Director by the Administrator and the said appointment shall be deemed to have been made as

per byelaws and the same will be treated as per statutory provisions of the Pondicherry Cooperative Societies Act, 1972 and thereafter the

Administrator shall hand over charge to the new incumbent within the outer limit of four months.

(viii) The Registrar of Cooperative Societies, Union territory of Pondicherry shall not in any manner interfere with the functions of the Administrator

or in the selection process and the Chief Secretary to Government of Pondicherry shall render all assistance to the Administrator.

Since the abovementioned order was passed on 22.1.2001 in the Contempt Petitions filed by the petitioner, directing the Registrar of Cooperative

Societies not to interfere with the functions of the Administrator or in the selection process and another direction to the Chief Secretary to

Government of Pondicherry to render all assistance to the Administrator, the said order had naturally caused strained relationship between the

petitioner and the respondents. This can be seen from the order of suspension passed, placing the petitioner under suspension without any

satisfactory reason. In view of the above, the relationship between the petitioner and the respondents got strained beyond repatriation. The said

suspension order was also published in a newspaper in three Tamil Dailies though there is no reason or need for advertising someone''s suspension

order as it is purely a departmental issue.

Thereafter, the petitioner was issued with a charge memo dated 12.8.2002 for the alleged incident took place in the year 2000 containing nine

charges which are as follows:

The first charge is that he has undertaken a circuitous route instead of selecting short route to attend Agri. Tech. Exhibition at Israel. Thus he has

acted against the interest of the union and failed to maintain absoljute integrity and breached the confidence reposed on him by the board of the

union in authorizing him to make arrangements.

The second charge is that he has not presented TA adjustment bill to adjust the correct claim, instead submitted an expenditure statement by

misusing his position as Managing Director incharge thereby claiming excessively to the tune of Rs. 63,056.25. The third charge is that the charged

officer initiated proceedings against one G. Arumugam, Junior Assistant which he was incharge of receiving and recording receipt of milk in the

diary, for his misappropriation of union''s fund to the tune of Rs.78,110/- by fraudulent entries and allowed him to pay only Rs.9,110/- even after

his own admission of guilt and dropped further action.

The fourth charge is that he deliberately avoided furnishing the details of action taken against Mr. Arumugam despite several reminders from the

statutory authorities and thus failed to keep absolute integrity.

The fifth charge is that while holding the additional charge of Managing Director, during the period from December, 1998 to August 1999 without

following the established and conventional purchase procedures, he acted against the interest of the Union by arbitrarily placing orders for the

purchase of disposable cups, without calling for quotations/tenders from competitive suppliers and place orders with M/s. Gothi Packaging

Industries, to the tune of Rs.97,200/-to help the said suppliers to exploit and monopolise the rates in the said supply.

The sixth charge is that while holding additional charge of Managing Director, during the period from April 1997 to December, 1997, on various

occasions allowed loss caused to the union by not recovering the cost of soured/curdled milk due to late arrival of Milk collection vehicle and

favoured the transport contractors by ordering not to collect the cost ignoring the certification by the Deputy Manager(P&O) even though a

specific condition in the agreement for such recovery. Thus he has deliberately caused loss to the union by not recovering the costs due to late

arrival. Thus he had lacked absolute integrity by acting against the interest of the uniobn.

The seventh charge is that while functioning as Manager (Operations)during Spetember, 1994 without authority or authorization and by violating

accepted norms, conventions and procedures sold 4015 Kgs of Ghee to private party at a lesser price of Rs.90/- per KG while the prevailing

market rate was ranging from Rs.130 to 160 and deliberately caused a loss of Rs.1,60,000/- to the union and thereby failed to safeguard the

interest of union.

The eighth charge is that in the said transaction besides failing to follow the established procedures of collecting the sale price in advance by

Cash/DD, he received cheques from the purchasers and acted outside the scope of his duties misusing the power as a superior officer, caused the

said cheques presented for collection belatedly six days after the bill date. Thus he deliberately, wantonly and fraudulently acted hands in glove with

the purchasers to help them to make arrangements for fund and thereby acted prejudicial to the interest of the union and lacked absolute integrity.

The ninth charge is that the Charged officer while under suspension deliberately and knowingly flouted the orders of the superior and without

obtaining prior permission left the Headquarters to go over to Chennai on 9.7.2002 in absolute disobedience and insubordination.

After the receipt of this charge memo, the petitioner submitted his explanation on 3.2.2003. On 15.2.2003, the petitioner was reinstated into

service by Mr. P. Bhujanga Rao, Dairy Development Officer. Immediately, the petitioner also joined duty as Assistant General Manager on

15.12.2003. Thereafter, the said P. Bhujanga Rao also passed an order directing the petitioner to take charge as Managing Director. Only,

thereafter, an Enquiry Officer was appointed on 7.8.2003. The petitioner took part in the enquiry till the completion of the entire proceedings.

Finally, on completion of the enquiry, the Enquiry Officer submitted his report on 28.11.2003. After receipt of the report of the Enquiry Officer

dated 28.11.2003, the petitioner was issued with an order dated 21.1.2004 about a de novo enquiry process against him.

It is relevant to keep in mind one vital fact that since the Chairman of the Elected Board Government though dropped charges 7 and 8, by his

proceedings dated 19.11.2002, the enquiry officer has proceeded with the charges.

The allegation as charge No. 1 is that the petitioner, while holding additional charge of the post of Managing Director, undertook a visit to

Agri.Tech.1999 Exhibition at Isreal from 2.9.1999 to 10.9.1999 by selecting a circuitous route instead of availing the direct route and caused

additional expenditure to the department to the tune of Rs.44,037.50/-.

The second charge is that, while holding additional charges of the post of Managing Director, after performing the tour along with the Chairman,

the petitioner has not presented his T.A. adjustment bill to adjust the correct claim. Instead, he submitted an expenditure statement and claimed in

excess of the admissible allowance and defrauded the union by claiming the excessive claim to the tune of Rs.63,056.25.

After enquiry, the Enquiry Officer held that the petitioner had proceeded on tour along with the Chairman only as per the resolution of the Board of

P.C.M.P.U. Further, the entire expenditure was approved by the then Chairman vide Ex.A.3. Moreover, the extracts from the relevant files also

disclosed that the expenditure has been approved by the Chairman in the pre- audit session. Based on the same, the Enquiry Officer finally held

that the Management is not able to show anything else to substantiate the allegations as contained in the charges. Because, when the petitioner was

able to establish that Charge Nos.1 and 2 cannot be made against him by placing copies of the resolution passed by the Board which supported

the explanation of the petitioner, the enquiry officer held that the management has not proved charge Nos.1 and 2.

As per charge No.3, the charged officer, while holding additional charges as M.D., initiated proceedings against one Sri. G. Arumugam, Junior

Assistant, while he was in charge of receiving and recording receipt of Milk in the Dairy for his misappropriation of Union''s fund to the tune of

Rs.78,110/- by making fradulent entries as to the procurement of milk during the period from 17.10.1993 to 15.04.1995. In spite of the

individual''s guilt proved through an independent enquiry besides his own admission of guilt, he was spared to pay only Rs.9,110/- without any

steps for recovery of the amount due to the union to the tune of Rs.69,000/- and thereby, further action was deliberately dropped, thus by his

actions the charged officer knowingly caused loss to the union and favoured the individual.

The fourth charge states that while holding the post of the Managing Director, he deliberately avoided furnishing particulars to the Registrar of Co-

operative Societies in spite of several reminders regarding misappropriation of funds by Sri. G. Arumugam, Junior Assistant-incharge of receiving

and recording receipt of milk in the Daily during the period from 17.10.1993 to 15.4.1995.

The Enquiry Officer in his report came to the conclusion that the petitioner had taken all necessary steps to ascertain who were the miscreants

responsible for the remaining sum of money, by marking Ex.B.2. A copy of the letter from Sorapet Cooperative Milk Producers Society refers to

the letter from the respondent management requiring recovery of Rs.78,109.87 from the employees of Sorapet Society. In this regard, the further

explanation offered by the petitioner pointing out the extra-ordinary circumstances which prevented him from pursuing the matter on account of the

demise of one T. R. Venkatesan with whom further investigation was handed over, was not even challenged by the management. Therefore, the

Enquiry Officer has held that charge Nos.3 and 4 were not proved.

The fifth charge relates to purchase of disposable cups without calling for quotations to the tune of Rs.97,200/- to help one private supplier to

exploit and monopolize the rates. In his finding, the Enquiry Officer has held that the petitioner has established to the satisfaction of the Enquiry

Officer that he has consulted his subordinate officers about the purchase. Reference was made to the deposition made by one witness P.

Gunasegaran, who admitted to be in control of the purchase section, to the effect that the petitioner discussed with him the purchase of disposable

cups based on the offer of M/s. Gothi Polypack Industries. The further evidence produced also indicated that M/s Gothi Poly Package Industries

is a dependable large concern situated in front of PCMPU. Their supply used to be of good quality and the rate was also considered to be

reasonable. On the basis of the above evidence, the Enquiry Officer also came to the conclusion that the 5th charge also stand disproved.

The sixth charge deals with the deliberate loss caused to the respondent by not recovering the cost of the soured/curdled milk due to the late arrival

of milk collection vehicles and favoured the transport contractors by ordering not to collect the cost of sour/curdles milk ignoring the certification of

late arrival by the Deputy Manager (P & O) even though there is a specific condition in the agreement for such recovery.

The Enquiry Officer finally has come to the conclusion that the charge itself is vague as it does not specify the extent of loss allegedly sustained by

the respondent department and also the quantity of milk soured/curdled and the exact date on which it happened and who were all its transport

contractors and who involved in the transportation of milk. When the Management failed to establish charge No.6 by pointing out what was the

loss and who were the transport contractors involved in the transportation of milk, and what was the quantity of milk which got spoiled, the

Enquiry Officer has rightly come to the conclusion that the charge was vague and without any substance.

The 7th and 8th charges were dropped by the Chairman of the Elected Board vide proceedings dated 19.11.2002. Yet, the Enquiry Officer

proceeded to consider those charges. Even this is not the case of the respondents that the proceedings dated 19.11.2002 passed by the Chairman

dropping two of the charges were recalled or set aside by any higher authority.

The ninth charge deals with the allegation, that while under suspension, without obtaining the prior permission, the petitioner left the Headquarters

to go over to Chennai on 9.7.2002. To disprove the allegation, he has given his explanation on 9.7.2002 informing that he has gone only to the

residence of his Counsel Mr. M. Ajay kumar at Lawspet, Pondicherry for signing papers for filing at High court, but he has not left Pondicherry,

for which, the management neither produced any document nor adduced any evidence to prove the abovesaid charge that he has left the

Headquarters. Therefore, the Enquiry Officer concluded that charge No.9 has also not been proved.

Therefore, an overall view of the charges and the findings given by the enquiry officer would show that the entire exercise has been carried out with

well planned design, motivated against the petitioner only to find fault with him for the simple reason that the petitioner has initiated Contempt

Proceedings against the Registrar of Cooperative Societies and the other respondent and finally, this Court in its order dated 5.5.2000, passed in

Contempt Applications Nos. 497 and 631 of 2000, appointed an Administrator and directed the Registrar of Co-operative Societies not to

interfere with the findings of the Administrator in any manner or in the selection process and the Chief Secretary to Government further was

directed to give all assistance to the Administrator. Since the petitioner has approached this Court by filing Contempt Applications Nos.497 and

631 of 2000 and this Court on seeing that its earlier order was ignored, finally appointed an Administrator replacing the Registrar of Cooperative

Co-operative Societies. This event has motivated the Registrar to go against the petitioner subjecting him to a de novo enquiry even though the

previous enquiry findings were in his favour. Therefore, on this ground alone the entire proceedings are liable to be set aside.

As per the earlier enquiry report, dated 28.11.2003, submitted by the enquiry officer, the petitioner was found ""not guilty"" in respect of charges

1 to 6 and 9. So far as the charges 7 and 8 are concerned, the Chairman himself had dropped these two charges. Therefore, the action of the

disciplinary authority again directing the petitioner to go for de-novo enquiry proceedings for all charges from 1 to 9 including charges 7 and 8

shows that the respondent has not applied his mind in launching the de novo enquiry proceedings dated 21.1.2004. More over when this is an

admitted case that the Chairman had dropped charge Nos.7 and 8, it is not known on what basis the de novo enquiry was initiated repeating the

dropped charges 7 and 8, particularly, when the first enquiry officer, on completion of his report submitted his report holding that the petitioner was

not guilty of any charges.

When the Enquiry Officer has finally found the petitioner was not guilty in respect of charges 1 to 6 and 9, the de-novo enquiry proceedings

dated 21.1.2004 asking the petitioner to appear for enquiry again has to be looked into with all seriousness. Nodoubt, it is true that the

Disciplinary Authority is entitled to differ from the findings of the Enquiry Officer, if the Disciplinary Authority is not satisfied with the findings of the

Enquiry Officer. But the law imposes an obligation upon the Disciplinary Authority to follow certain mandatory procedures. In this context it is

pertinent to recollect the ratio laid down by the Constitution Bench of the Supreme Court in B. KARUNAKAR case squarely applies here. As per

the ratio in B.KARUNAKAR''s case, the first stage of enquiry is not completed till the disciplinary authority has recorded his findings. Because,

the first stage ends where the disciplinary authority arrives at its conclusions on the basis of the evidence, the enquiry officer''s report and the

delinquent employee''s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its

conclusions. Therefore, at this stage, the principles of natural justice would demand that the authority who proposes to decide against the

delinquent officer must give a hearing. The reason being when the Enquiry Officer holds that the charges are proved, then that report has to be

given to the delinquent who can make a representation to the disciplinary authority before he takes further action which may be prejudicial to the

delinquent officer. In the present case, the enquiry report is in favour of the delinquent but the disciplinary authority proposes to differ with such a

conclusion and proposes to go for a de novo enquiry. Then, that authority, which is deciding against the delinquent officer, must give an opportunity

of hearing, otherwise, the delinquent would be condemned unheard. When admittedly, the enquiry officer by its report dated 28.11.2003 held that

the charges levelled against the petitioner were not proved by the management, then the disciplinary authority before going for a de-novo enquiry

should have issued a show cause notice to the petitioner to show cause as to why the disciplinary authority should not differ with the findings of the

enquiry officer and go for a de novo enquiry. As the said procedure has not been followed, the entire proceedings initiated after the initiation of a

de novo enquiry cannot be legally sustained.

The petitioner, after having faced the de novo enquiry has filed W.P. No.2394/2004. This Court, by order dated 28.6.2004, has directed the

petitioner to cooperate with the enquiry officer and further directed the respondent management to proceed with the enquiry and complete the

same on or before 15.7.2004. Aggrieved by the said order, directing the respondent management to complete the enquiry on or before

15.7.2004, the petitioner filed W.A.No.2642/2004. The Division Bench of this Court also by its order dated 12.7.2004 clarified that the enquiry

may be completed and the findings of the enquiry officer may be placed before this Court in a sealed cover. Subsequently, the respondent having

placed the sealed cover proceedings before this Court should not have passed the final order dismissing the petitioner from the service of the

respondent. Such a hasty action hyet again proves that the impugned order is clearly motivated one. Therefore, when W.A.No.2642/2004 was

listed on 27.6.2004 the petitioner reported to this Court stating that the respondent has passed the order of dismissal on 25.8.2004 and the said

order of dismissal has been challenged in W.P. No.27699/2004. In view of the subsequent developments, since the petitioner was dismissed and

the said dismissal order having been challenged by the petitioner, this Court holding the W.A.No.2642/2004 as having become infructuous, has

given liberty to the petitioner to raise all the grounds that were canvassed in the writ appeal and the said order is extracted hereunder:

2.Though the appellant challenged the proceedings directing the Enquiry Officer to conduct de-novo enquiry again, now the learned counsel

appearing for the appellant submitted that though the above writ appeal is pending, the respondents have passed an order dismissing the appellant

from service. The appellant has also filed a writ petition challenging the order of dismissal in W.P. No.27699 of 2004. Since such proceedings are

pending, the above writ appeal has become infructuous. Bt the writ petitioner is given liberty to raise the grounds, which have been raised in this

writ appeal, in the writ petition viz., W.P. No.27699/2004 challenging the order of dismissal.

With the above observation, the writ appeal is dismissed. No costs. Consequently, connected W.A.M.P. Is dismissed.

A mere reading of the above order passed by the Division Bench of this Court shows that the validity of the order passed by the respondent,

initiating de novo enquiry by its order dated 21.1.2004, was never decided by this Court. Though the de novo proceedings were the subject

matter of Writ Appeal No.2642/2004, the respondents have passed the order of dismissal without following the rulings of the Apex Court in

KARUNAKAR case followed by the decision rendered in PUNJAB NATIONAL BANK AND OTHERS V.KUNJ BEHARI MISRA.

It is relevant to see what was the issue raised in PUNJAB NATIONAL BANK AND OTHERS V. KUNJ BEHARI MISRA. The only

contention raised before the Supreme Court was, when the Punjab National Bank Officer Employees (Discipline and Appeal) Regulations 1977

did not require an opportunity of being heard to be given to the delinquent officers when the disciplinary authority disagreed with the findings of the

enquiring authority, whether the delinquent should be given one more hearing before holding the second enquiry or not. In other words, where the

disciplinary authority disagrees with the findings of the enquiring authority and acts under Regulation 7(2), the said Sub-Regulation does not

specifically state, when the disciplinary authority disagrees with the findings of the enquiring authority, he is required to record his own reasons for

such disagreement and also to record his own findings on such charge. But he is required to give a hearing to the delinquent officer. A contention

was made relying on the decision of the Supreme Court in S.S.KOSHAL case to the effect that where the Disciplinary Authority disagrees with

the findings of the Enquiry Officer which was favourable to the delinquent, a fresh opportunity was not required. But, a subsequent Full Bench of

the Supreme Court has held in PUNJAB NATIONAL BANK case that the principles of natural justice require that an employee should have a

fair opportunity to meet, explain and controvert it before he is condemned and the relevant text is extracted as under:

If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice requires that the

employee should have a fair opportunity to meet, explain and controvert it before he is contemned.

Even though the findings of the Enquiry Officer also explicitly established the innocence of the petitioner, the disciplinary authority, despite the

submission of the report by the enquiry officer holding the petitioner not guilty, chose to issue the order to conduct de novo enquiry which is clearly

proved to be a motivated one. When the petitioner along with his Chairman undertook tour programme to attend the techno Exhibition at Isreal,

under what circumstances he has taken longer route than the shorter route has to be judged only on the basis of the availability of flight services. It

is not the case of the management that, when there were frequent flight services through shorter route to Isreal, the petitioner along with the

Chairman has availed circutious route. Accordingly, the charges levelled against him appears to be vague and motivated. Therefore, I am of the

considered view that the principles laid down by the Apex Court in Punjab National Bank case that on submission of the favourable report by the

Enquiry Officer, the Disciplinary Authority, before even going for a de novo enquiry disagreeing with the findings of the enquiry officer, should issue

with a show cause notice to the petitioner and call him to explain as to why the findings of the Enquiry Officer should not be deviated, have been

flagrantly violated. The dictum in the ruling of PUNJAB NATIONAL BANK is clearly applicable to the facts of this case. Therefore, I hold that it

will not stand to reason that when the findings in favour of the delinquent Officer are proposed to be overturned by the Disciplinary Authority then

no opportunity should be granted. In these circumstances the de novo enquiry proceedings are vitiated.

To sum up, the initiation of contempt proceedings against the respondent in Contempt Application Nos.497 and 631 of 2000, virtually

snowballed into the appointment of an Administrator for the respondent/Society by keeping the Registrar away from the Society till the Managing

Director to the Society was selected. For the reason that the Managing Director and the Registrar of Co-operative Societies have been kept out of

the reach of the Society, the petitioner was subjected to disciplinary proceedings on totally vague and flimsy charges. Secondly, it is writ large on

the 2nd Enquiry Officer''s Report that, ignoring the fact that charge Nos.7 and 8 were already dropped by the Chairman, the petitioner was

unjustly held guilty for those two charges which is totally illegal. The action of the authority concerned strongly suggests that it was always their

endeavour to somehow find fault with the petitioner. Thirdly, even during the pendency of the matter before this Court, when there is no direction

to pass final orders, the petitioner was hastily dismissed from service. More over, the principles laid down by the Apex Court in Punjab National

Bank cited supra to the effect that when the Enquiry Officer has submitted a report in favour of the delinquent officer, before the Disciplinary

Authority differing with the same so as to proceed with a de novo enquiry, due show cause notice should be issued to the petitioner enabling him to

explain as to why the findings of the Enquiry Officer should not be deviated, have been given a convenient go-bye.

For the foregoing reasons, this Court has no other option but to quash the impugned proceedings. Consequently, the Writ Petition is allowed,

with a direction to the respondents to pay all the consequential/cumulative monetary benefits. No costs