G.M. Sivaraju vs The Government of Tamil Nadu

D. Hari Paranthaman, J.—The petitioner in W.P. No.8691 of 2006 (O.A. No.4228 of 2003) was working as Assistant Director of Sericulture, C.B. Grainage, Londonpet, Krishnagiri. The petitioner in W.P. No.17365 of 2007 (O.A. No.4227 of 2003) was working as Assistant Inspector of Sericulture in the Office of the Assistant Director of Sericulture, Krishnagiri.

A separate charge memo dated 21.09.2003 was issued to the petitioners under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

In respect of the petitioner in W.P. No.8691 of 2006, eight charges were framed against him. In respect of the petitioner in W.P. No.17365 of 2007, nine charges were framed against him. Charges 1 to 8 in both the cases are common. Enquiry was held in both the cases.

In respect of the petitioner in W.P. No.8691 of 2006, the Enquiry Officer held that charges nos.1 to 5 were not proved, charge no.6 was partly proved, charge no.7 was fully proved and a portion of charge no.8 was proved.

In respect of the petitioner in W.P. No.8691 of 2006, the first respondent passed the impugned order in G.O. Ms.No.59, Handlooms, Handicrafts, Textiles and Khadi (G-1) Department, dated 15.10.2003 imposing the punishment of stoppage of increment for three years with cumulative effect and also ordered for recovery of Rs.35,803.50.

When the writ petition in W.P. No.8691 of 2006 was heard on 09.06.2011, a learned Single Judge of this Court passed the following order:

"The learned counsel for the petitioner submitted that though the enquiry officer has held charge no.8 only has partly proved, the disciplinary authority without issuing any show cause notice, has disagreed with the views of the enquiry officer and found him guilty of the charge in entirety. As violations of principles of nature justice is alleged, the learned Additional Government Pleader is directed to secure the files pertaining to G.O. Ms.No.59, Handlooms, Handicrafts, Textiles and Khadi (G-1) Department, dated 15.10.2003. Post on 13.6.2011."

However, the files as directed by this Court on 09.06.2011 is not produced before this Court, though the matter was adjourned on many occasions. No counter affidavit is filed. However, the learned Additional Government Pleader has made his submissions based on the records.

Likewise, in respect of the petitioner in W.P. No.17365 of 2007, the Enquiry Officer held that charge nos.1 to 5 were not proved, charge nos.6 to 8 were proved and charge no.9 was partly proved.

In respect of the petitioner in W.P. No.17365 of 2007, the first respondent passed the impugned order in G.O. Ms.No.60, Handlooms, Handicrafts, Textiles and Khadi (G-1) Department, dated 15.10.2003 imposing the punishment of stoppage of increment for three years with cumulative effect and also ordered for recovery of Rs.35,803.50.

Similar contention as made in W.P. No.8691 of 2006 is made in this writ petition also that the first respondent Government failed to issue show cause notice as to the disagreement of the views of the Enquiry Officer relating to part of charge no.9, as the first respondent Government proceeded on the basis that charge no.9 was also held to be proved by the Enquiry Officer. In this case also, no counter affidavit is filed and the learned Additional Government Pleader has made his submissions based on records.

Heard the submissions made on either side and perused the materials available on record.

As rightly contended by the learned counsel for the petitioners, the first respondent Government passed the impugned orders, without issuing show cause notice on the disagreement of the views of the Enquiry Officer and found the petitioners guilty of the charges that were held not proved by the Enquiry Officer, as stated above. It is well settled that if the Disciplinary Authority disagrees with the findings of the Enquiry Officer and has come to a different conclusion, the delinquent Government employee shall be heard on the differed views before imposing the punishment.

In this regard, it is useful to extract para 12 of the judgment of a Division Bench of this Court in M. Mohandas Vs. State Bank of India .

"12. In service jurisprudence, it is open to the Disciplinary Authority to conduct an enquiry or to appoint an Inquiry officer to look into the matter and to submit his report. In case, inquiry was conducted by the Disciplinary Authority, opportunity of hearing has to be given by him to the delinquent. In case, an Inquiry Officer is appointed and he submits a report, there are two courses open to the Disciplinary Authority. The Disciplinary Authority in his discretion may accept the report. In case the Disciplinary Authority is dissatisfied with the findings recorded by the Inquiry Officer and proposes to arrive at a different conclusion, he should indicate the tentative reasons to the delinquent. The delinquent should be given an opportunity to submit his version with respect to the tentative findings recorded by the Disciplinary Authority. There is a laudable purpose in giving such an opportunity. It would enable the delinquent to plead and convince the Disciplinary Authority to accept the views expressed by the Inquiry Officer rather than to take a different view in the matter. Therefore, this is a very valuable right given to the employee. The Courts have time and again indicated the importance of this right."

14.The learned counsel for the petitioners has also brought to my notice that while the Tamil Nadu Public Service Commission gave its opinion to impose the punishment of stoppage of increment for one year without cumulative effect and also for recovery of 10% of the loss, the same was not considered by the Government while passing the impugned orders though the opinion was simply extracted in the impugned orders.

15.In view of the settled position of law, I am of the view that the impugned orders are liable to be quashed. Accordingly, the impugned orders are quashed and the matter is remanded back to the first respondent Government to pass orders afresh, after hearing the petitioners on the differed views of the first respondent from that of the Enquiry Officer. Further, while deciding the matter afresh, the first respondent Government also shall consider the opinion of the Tamil Nadu Public Service Commission as stated above. The first respondent is directed to complete the aforesaid exercise within a period of four months from the date of receipt of a copy of this order.

16.The writ petitions are disposed of in the above terms. No costs.