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R. Mahadevan, J.—W.P. (MD) No. 6362 of 2006 has been filed seeking a writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the first respondent in Ref. No. 19161/Ki-Cil/2004 dated 05.12.2005 and the confirmation order passed by the second respondent in Ref. No. 680/MU/2006-2 dated 13.05.2006 and quash the same and consequently, direct the first respondent to reinstate the petitioner in the post of Chief Head Warder with other service benefits. W.P. (MD) No. 6363 of 2006 has been filed seeking a writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the first respondent in Ref. No. 6874/Ki-Cil/2005 dated 05.12.2005 and the confirmation order passed by the second respondent in Ref. No. 680/MU/2006-1 dated 13.05.2006 and quash the same and consequently, direct the first respondent to reinstate the petitioner in the post of Chief Head Warder with other service benefits.
The petitioner in both the writ petitions, is one and the same and he challenged two impugned orders by filing the above two writ petitions.
The brief facts of the case of the petitioner in both the petitions, are as follows:
W.P. (MD) No. 6362 of 2006:
3.1. The petitioner was appointed as II Grade Warder in the Department of Prisons on 13.05.1983. On 10.09.2000, he was promoted as Head Warder and later, on 18.10.2002 as Chief Head Warder. While so, he was issued with a charge memo dated 18.12.2004 by the first respondent stating that he had committed some irregularities during his service as Chief Head Warder in the Sub Jail at Kodaikanal. He also submitted his explanation to the said charge memo on 10.01.2005. However, without consider his explanation, the first respondent decided to conduct an enquiry on the charges levelled against the petitioner. Accordingly, an Enquiry Officer was appointed to conduct the departmental enquiry for the charges levelled in the charge memo dated 18.12.2004. On enquiry, the Enquiry Officer found that the charges levelled against the petitioner were proved and subsequently, a second show cause notice dated 10.10.2005 came to be issued to the petitioner.
3.2. The petitioner further alleged that the first respondent has passed the punishment order on 05.12.2005 without considering the reply submitted by the petitioner dated 28.11.2005 to the second show cause and thereby, he was imposed with the punishment of compulsory retirement for the alleged irregularities said to have committed by the petitioner. Aggrieved by the same, he preferred an appeal before the second respondent on 01.02.2006, which came to be dismissed on 13.05.2006, confirming the order of punishment passed by the first respondent. Challenging the same, the petitioner has filed the writ petition in W.P. (MD) No. 6362 of 2006.
W.P. (MD) No. 6363 of 2006:
3.3. Insofar as W.P. (MD) No. 6363 of 2006 is concerned, the petitioner was issued with a charge memo dated 28.04.2005 stating that he committed certain irregularities and on the basis of the charges levelled therein, the petitioner came to be suspended from service on 28.04.2005. Aggrieved by the same, the petitioner filed W.P. (MD) No. 4134 of 2005 alleging that the authority has passed the order arbitrarily. However, this Court dismissed the writ petition on 03.05.2005. Thereafter, the first respondent issued another charge memo dated 09.05.2005 for the same charges. He also submitted his explanation on 05.06.2005.
3.4. It is alleged that the Enquiry Officer conducted the enquiry without following the procedures and no opportunity was given to him to examine the witnesses and the copies of relevant documents had not been served on him before enquiry. He pleaded violation of principles of natural justice. Whereas, the Enquiry Officer filed the report dated 05.10.2005 stating that the charges levelled against him were proved. On the basis of the report of the Enquiry Officer dated 05.10.2005, a second show cause notice came to be issued on 10.10.2005, to which, the petitioner also submitted a reply dated 28.11.2005. Notwithstanding the same, the first respondent imposed the punishment of compulsory retirement on the petitioner for the alleged irregularities said to have committed by him. He urged that the first respondent has got no jurisdiction to impose such punishment. Aggrieved by the same, he preferred an appeal before the second respondent on 01.02.2006, which came to be dismissed on 13.05.2006, confirming the order of punishment passed by the first respondent. Challenging the same, the petitioner has filed the writ petition in W.P. (MD) No. 6363 of 2006.
The respondents have filed the counter affidavit denying the averments made in the writ petition in W.P. (MD) No. 6362 of 2006, the gist of the same, is as follows:
The petitioner was initially appointed as II Grade Warder in Prison Department on 13.05.1983. He was promoted as I Grade Warder on 23.11.2000. As per the G.O.Ms. No. 1238, Home (Pr. II) Department, dated 13.12.2001, the Government upgraded the post of I Grade Warder in Sub Jails as Chief Head Warder. Accordingly, the petitioner was promoted as Chief Head Warder and posted in the upgraded post of Chief Head Warder at Sub Jail, Thiruppathur, on 19.10.2002 A.N. During the period of service, the petitioner was imposed with several punishments. Thereafter, he was transferred to Sub Jail, Kodaikanal, on administrative grounds and he joined duty therein on 30.03.2004. In the absence of Superintendent, Sub Jail, the petitioner looked after the administration of the Sub Jail with effect from 30.03.2004. Based on the complaint dated 28.11.2004 stating that the petitioner was absent for duty from 23.11.2004 and he did not hand over the charges to anybody and also took away the key of cash chest, the charges were framed against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. The petitioner submitted his explanation for the charge memo, on 10.10.2005. The Enquiry Officer was appointed and he conducted the enquiry as per the said Rules. Though the petitioner was given an opportunity to examine the prosecution witnesses, he did not cross-examine them. On completion of enquiry, the petitioner was directed to submit the final representation, which the petitioner submitted on 28.11.2005. The Enquiry Officer found that the charges levelled against the petitioner, were proved. Accordingly, the first respondent imposed the punishment of compulsory retirement from service and on appeal filed by the petitioner, the same was confirmed. Therefore, the respondents prayed for the dismissal of the writ petition.
Heard both sides and perused the materials available on record.
The learned Counsel for the petitioner made the following submissions:
(a) The Enquiry Officer has not considered the evidence available on record in respect of the first charge that the petitioner remained absent form 23.11.2004 after prior permission and intimation. He pleaded prejudice on non-consideration of evidence.
(b) In the charge memo, there was no reference to dishonest intention or misappropriation and no evidence was adduced to prove the same. However, the disciplinary authority in his order of punishment, stated that the petitioner had temporarily misappropriated the amounts. It would reveal that the petitioner was punished for misconduct for which he has not been charged.
(c) The authorities failed to consider the fact that even if there was delay in paying the amount, the same cannot be considered as temporary misappropriation.
(d) The copies of the documents relied on by the Department were not supplied to the petitioner. The disciplinary authority did not mention about the proposed punishment in the second show cause notice and thereby, his right to defend the charges was denied.
(e) The respondents failed to assign any reason for rejecting the grounds raised by the petitioner. The appellate authority has not assigned any reason while confirming the order of the disciplinary authority.
(f) The respondents have passed two orders of compulsory retirement against the writ petitioner on the same date and hence, they have no jurisdiction to pass the very same order for the second time as against the petitioner.
(g) The punishment of compulsory retirement imposed on the petitioner is unsustainable.
In support of his contentions, the learned Counsel for the petitioner has placed reliance upon the following decisions:
(i) Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others, .
(ii) Indu Bhushan Dwivedi Vs. State of Jharkhand and Another, .
(iii) The Board of Directors Canara Bank v. K. Chandran reported in 2002(2) CTC 9.
(iv) Krushnakant B. Parmar Vs. Union of India (UOI) and Another, .
(v) Chairman, LIC of India and Others Vs. A. Masilamani, .
(vi) S.R. Tewari Vs. Union of India (UOI) and Another, .
Per contra, the learned Government Advocate appearing for the respondents reiterated the averments made in the counter affidavit filed by the respondents and prayed for the dismissal of the writ petitions.
The charges against the petitioner in the first case are dissertation, failure to maintain the registers and misappropriation resulting in misconduct.
The charges in the second case are that the petitioner has misappropriated the funds temporarily and utilized the same for his personal use and has not maintained the records properly.
After enquiry, the enquiry officer in both cases found the petitioner guilty. After giving the second show cause notice, the punishment of "Compulsory Retirement" has been imposed on the petitioner. The petitioner has filed an appeal before the second respondent who has confirmed the order of the first respondent. Both the original orders and the orders in appeal are in challenge before this Court.
Before reviewing the orders of the first respondent, under the facts and circumstances, this court feels it appropriate whether the orders passed by the appellate authority are sound in law.
In both the writ petitions, the ground of attack on the second respondents order is that he has failed to pass a speaking order giving reasons.
In the judgment in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others, , the Hon''ble Apex Court has held as follows:
In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in State Bank of Bikaner and Jaipur and others Vs. Prabhu Dayal Grover, , has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority.
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No doubt, in S.N. Mukherjee Vs. Union of India, , it has been observed that: (SCC p.613, para 36)
36........ The appellate or revisional authority, if it affirms such an order, need not give separate reasons, if the appellate or revisional authority agrees with the reasons contained in the order under challenge." The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one-line orders stating that they agree with the view of the lower authority.
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Hence, we agree with the High Court that reasons should have been contained in the appellate authority''s order, but we cannot understand why the High Court has set aside the order of the disciplinary authority, in addition to setting aside the appellate order.
The petitioner in the grounds of appeal has spelled his grounds of attack on the orders passed by the first respondent with respect to each charge. In both the cases, specific grounds were raised against findings in each charge. The first respondent has not given any reasons for rejecting the claim of the petitioner that he suddenly fell sick and was treated as an inpatient in the Government Rajaji Hospital, Madurai and to the various contentions raised by the petitioner on other charges also.
In the second case, even in the charge memo, the petitioner was put in charge of all administrative functions excluding handling of money and related records. The petitioner had specifically raised a defence that when he was not in-charge of money and maintenance of records during the relevant period, the charges against him were not sustainable. The opportunity to cross-examine certain officers was also denied during the enquiry proceedings. The order of the first respondent is not in consonance with the charges and the reply of the petitioner. Even the enquiry officer has not given any findings to reject the contentions of the petitioner.
All along, the entire enquiry proceedings have been conducted in a prejudiced manner. The petitioner has raised various contentions for which there is no specific finding based on material evidence in the order of the first respondent. While so, instead of mechanically rejecting the appeal, the second respondent either could have remanded the matter to the first respondent or could have passed a reasoned order meeting out each and every grounds of defence raised by the petitioner. The judgment relied upon by the petitioner in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others, is squarely applicable. Since the matter is being remitted, this Court is not going into the other judgments relied on by the petitioner.
In the above circumstances, the orders of the second respondent dated 13.05.2006 are set aside and the matters are remitted back to the second respondent to consider the appeals afresh on merits and in accordance with law after affording the petitioner an opportunity of being heard and then pass a speaking order. In the result, both the writ petitions are partly allowed. No costs.