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Judgment
K. Chandru, J.—The Petitioner filed O.A. No. 6552 of 2000 before the Tamil Nadu Administrative Tribunal challenging the enquiry report
dated 8.10.1999 drawn by the Additional Director of Handloom and Textiles, Chennai (3rd Respondent in the Original Application ), which was
also communicated to the 1st Respondent State vide letter dated 21.6.2000 and after setting aside the same, he seeks for a direction to disburse
all service benefits, which have been withheld on account of the disciplinary proceedings.
The Original Application was admitted on 8.9.2000 and an one line interim stay order was granted without recording of a prima facie finding.
Subsequently, the interim order was directed to be continued without limiting the time by a further order dated 29.2.2000. Even though the official
Respondents filed M.A. No. 5730 of 2002 for vacating the interim stay together with a supporting counter affidavit dated 14.3.2002, the Tribunal
did not find time to take up their application and the stay was allowed to be continued all these years.
In view of the abolition of the Tribunal, the matter stood transferred to this Court and renumberred as W.P. No. 960 of 2007. Finding that the
matter was not listed and that he was reaching the age of retirement, the Petitioner filed M.P. No. 1 of 2007 for fixing an early date of the hearing
of the Writ Petition and date was also fixed as 20.4.2009. In the affidavit filed in support of the Miscellaneous Petition, it was also brought to the
notice of this Court that since the disciplinary action and the criminal case faced by him were based upon on the same set of facts, there was no
necessity to pursue the disciplinary action.
The learned Counsel for the Petitioner Mr. K. Rajkumar wanted to argue on merits regarding the perversity of the findings in the enquiry report
given by the enquiry officer. However, this Court is not inclined to allow such an argument on the merits of the case. It is suffice to state that after
the enquiry officer''s report was given by the Additional Director of Handlooms and Textiles, the State Government asked the Petitioner to give his
explanation on the report submitted by the enquiry officer. The Petitioner instead of submitting his explanation rushed to the Tribunal and had
obtained a stay order, thereby stalling any action being taken by the state Government for the last 10 years.
After the 42nd amendment made to the Constitution, the opportunity of providing a second show cause notice was removed and the Service
Rules framed under Article 309 of the Constitution were expected in conformity with the 42nd amendment. When the 42nd amendment, amending
Article 311 of the Constitution came to be challenged, a Constitution Bench of the Supreme Court in Union of India and Another Vs. Tulsiram
Patel and Others, had upheld the said amendment. The Supreme Court held that the grant of a second show cause notice and hearing of a
Government servant on the pending are not part of known reasonable opportunities and such an opportunity cannot be raised to the level of
constitutional right. Therefore, the Government has no obligation to issue a second show cause notice either on the question of the findings or on
the question of penalty. The relevant Service Rules have also been brought in tune with the 42nd amendment.
However, the Supreme Court subsequent to the amendment by its judgment in Union of India and others Vs. Mohd. Ramzan Khan, held that if
the enquiry officer is different from that of the disciplinary authority, then an opportunity should be given to the charge sheeted Government servant
to put forth his remarks on the enquiry officer''s findings. The opportunity was held to be part of the principles of natural justice. Elaborately the
effect of Md. Ramzan Khan''s case, a larger bench of the Supreme Court in "" Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc.,
held as follows:
It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The
first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, 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. If the
disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee''s right to receive the
report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect
denied the right to defend himself and to prove his innocence in the disciplinary proceedings.
The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a ""reasonable
opportunity of being heard in respect of the charges against him"". The findings on the charges given by a third person like the enquiry officer,
particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves
constitute new unwarranted imputations. What is further, when the proviso to the said Article states that ""where it is propose after such inquiry, to
impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be
necessary to give such person any opportunity of making representation on the penalty proposed"", it in effect accepts two successive stages of
differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the
enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee''s reply to the enquiry officer''s report and
consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so
carried out and it consists of the issuance of the notice to the notice and deciding upon the penalty. What is dispensed with is the opportunity of
making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right
was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood
deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have
arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-
second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer''s
report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives
at its conclusion with regard to his guilt or innocence of the charges.
It is only in consonance with such orders of the Supreme Court, the state Government had given the impugned notice. Instead of replying to the
said show cause notice and bringing all his contentions before the State Government, the Petitioner has filed Original Application, which now
stands converted into a Writ Petition.
Though the learned Counsel for the Petitioner strenuously argued that this Court has got discretion to entertain such a Writ Petition, this Court is
not inclined to exercise any such discretion especially when the State Government had obeyed the law laid down by the Supreme Court and the
State had given an opportunity of giving an explanation to the enquiry report. It is for the competent authority to go into the findings and thereafter
taking into account the remarks if any offered by the charge sheeted Government servant, come to a conclusion one way or the other. In case of
agreeing with the findings of proved misconduct, they can impose appropriate punishment on such Government servant. The Standing Rules also
provide for an appeal in case of an adverse order passed by the authority. If the order is passed by the State Government itself, then the Rules also
provide for a review. Therefore, there is time enough to correct if a wrong order is passed by the Government. Certainly, this Court will not
interdict a notice at the stage of calling for remarks on the enquiry report as it would amount to usurping the powers of the competent authority. To
go into the findings of the enquiry officer''s report, this Court''s judicial power is very limited.
Though the learned Counsel for the Petitioner wanted to consider the merits of the case, since the Writ Petition is rejected only on the ground of
the Petitioner''s right to convincing the authority on the perversity of the findings, this Court is not inclined to go into the said issue.
Thereafter, Mr. K. Raj Kumar, learned Counsel for the Petitioner stated that while directing the Respondents to consider his representation, the
subsequent events must also be taken into account. It is less said the better on the said submission. Admittedly the Petitioner having filed the O.A.
No. 6552 of 2000 ten years ago cannot ask for certain observations, which may put to fetters on the powers of the disciplinary authority in
deciding the case. If this Court cannot go into the merits of the case, then no such direction can be issued. Ultimately, it is for the Petitioner to make
his remarks which will be considered by the authority in accordance with law.
The writ petition stands dismissed. No costs.