N. Punniamoorthi vs The Commissioner of Municipal Administration and The Collector of Ramanathapuram

T. Raja, J.—This writ petition is directed against the impugned proceedings issued by the first respondent-Commissioner of Municipal

Administration in Na.Ka. No. 1714/2003/F1 dated 13.8.2007, in which the first respondent, after differing from the findings of the enquiry officer

exonerating the petitioner, called for explanation from the petitioner as to why the disciplinary authority should not deviate from the findings and

conclusions arrived at by the enquiry officer, by adding two more allegations, for passing final orders. Assailing the said proceedings, the learned

counsel for the petitioner submitted that when the petitioner was serving as Assistant Executive Engineer in Rameswaram Town Panchayat

between the years 1999 and 2001, the second respondent-Collector of Ramanathapuram District framed four charges against him by issuance of

the charge memo dated 28.12.2001. The first charge related to the purchase of certain materials like blue metal, brick, etc., from the unapproved

outlets by showing 25% inflated rate on the cost of material and transport; the second charge also related to purchase of similar materials from

unapproved outlets and causing loss to the exchequer and the third and fourth charges are usual charges, namely, without realising his official

position, he had acted in contravention of the rules, rendering himself unbecoming of a Government servant, and thereby committed misconduct.

After considering the explanation offered by the petitioner, the enquiry officer submitted his report dated 28.10.2002 exonerating the petitioner of

all the charges. But, unfortunately, the first respondent/disciplinary authority, differing with the report filed by the enquiry officer dated 28.10.2002

exonerating the petitioner, appointed the second enquiry officer to go into the same charges and it was further submitted that even the second

enquiry officer submitted his report dated 16.12.2003, again exonerating the petitioner from all the charges. Even after the two reports exonerating

the petitioner by the two enquiry officers, the present impugned proceeding has been issued by the disciplinary authority, with a delay of four years,

on 13.8.2007, differing with the report of the enquiry officer dated 16.12.2003, adding two more allegations, stating that the disciplinary authority

would be passing final orders after receipt of the petitioner''s explanation.

Adding further, it was stated that when the law is well settled that if the disciplinary authority is of the view that the report of the enquiry officer

exonerating the delinquent officer is not acceptable, it is always open to the disciplinary authority to differ with the findings of the enquiry officer by

giving an opportunity to the delinquent officer and only after calling for explanation from the concerned delinquent officer, the disciplinary authority

could pass appropriate suitable orders. But, in the present case, the disciplinary authority, after obtaining a report from the first enquiry officer on

28.10.2002, being not satisfied with the report exonerating the petitioner of all the charges, once again, even without seeking any explanation as to

why he should not differ from the said report, wrongly appointed the second enquiry officer. Fortunately, the second enquiry officer also submitted

another report on 16.12.2003 exonerating the petitioner from all the charges. Once again the disciplinary authority, without even accepting the

second report submitted by the second enquiry officer, issued the present impugned proceedings, adding two more allegations, stating that he

would be passing final order on receiving the further explanation from the petitioner. This clearly shows that the disciplinary authority was not

inclined to hold any further enquiry and has issued the impugned proceedings only to victimise the petitioner, although the two enquiry officers had

held him innocent in respect of the charges. In support of his submission, the learned counsel for the petitioner relied upon a judgment of this Court

in S.C. Tamil Selvan v. Board of Tamil Nadu Minerals Ltd., rep. by the Chairman and Managing Director, Chennai and another, (2008) 7 MLJ

318 to canvass the point that when an enquiry report was submitted by the enquiry officer and if it is found to be irregular, it is open to the

disciplinary authority to either discredit it or record a finding on his own. But he cannot seek for a second report on the very same materials. One

another judgment of a Division Bench of this Court in the case of L. Perumal Chetty Vs. The Principal Commissioner and Commissioner for

Revenue Administration, The District Revenue Officer, The Revenue Divisional Officer and The Registrar, The Tamil Nadu Administrative

Tribunal, was also relied upon by the learned counsel for the petitioner to support his case that it is not open to the respondents to issue a fresh

charge memo after receipt of the enquiry report dated 28.10.2002 exonerating the petitioner by the first enquiry officer, since, when the said report

is dislodged or differed, the disciplinary authority should call upon the petitioner to submit his explanation as to why the first report submitted by the

enquiry officer should not be disregarded.

Continuing his arguments, it has been further pleaded that when the disciplinary authority, after issuing the charge memo dated 28.12.2001, was

unable to get a favourable report from the two enquiry officers, who submitted the reports dated 28.10.2002 and 16.12.2003 exonerating the

petitioner, once again erroneously issued the present impugned deviating note dated 13.8.2007 adding two more allegations specifically mentioned

therein that the disciplinary authority would be passing final orders on receiving the written representation from the petitioner on the differing note.

This gives enormous apprehension to the petitioner that the disciplinary authority has pre-judged the issue with a pre-determined mind to impose a

grave punishment on the petitioner, hence, the same is not legally sustainable. Finally, it was pleaded that although the disciplinary authority is

entitled to issue the differing note to deviate from the enquiry officers reports, in the present case, when the second enquiry officer had already

submitted a report on 16.12.2003 exonerating the petitioner of the charges, without any sufficient cause, after four long years, the present

impugned differing note adding two more allegations has been issued against the petitioner. As the said approach is not legally sustainable, the same

is liable to be quashed. In support of this submission, he has also relied upon one another unreported order passed by the Hon''ble Division Bench

of this Court in W.P. No. 11167 of 2002 dated 12.12.2003 (S. Amzline John Jeevakaran v. Central Administrative Tribunal, Chennai Bench and

others), wherein this Court, while having an occasion to consider a similar issue, has held that once the disciplinary authority wants to deviate from

the report of the enquiry officer, should issue the differing note immediately, but not with a huge delay of 3 = years, as this would cause immense

prejudice and mental agony to the petitioner. On this basis, he prayed for allowing the writ petition by setting aside the impugned order.

Per contra, the learned Additional Government Pleader for the respondents, by relying upon the averments made in the counter affidavit filed by

the first respondent, stated that the present writ petition is not maintainable for the reason that the petitioner, having received the present impugned

proceeding from the first respondent, is bound to submit his written representation. The reason being that when the petitioner was subjected to

departmental proceedings in respect of four charges contained in the charge memo dated 28.12.2001, the enquiry officer found the charges not

established. However, the second enquiry officer was appointed, who also, after completing the enquiry, submitted his report dated 16.12.2003,

again exonerating the petitioner. Therefore, the disciplinary authority, having enormous power to deviate and differ from the report of the enquiry

officer, issued the present impugned proceedings assigning reasons for his disagreement with the report of the enquiry officer exonerating the

petitioner of the charges, since he has not considered the evidence and other important details submitted by the department. While issuing the

present impugned proceedings dated 13.8.2007, differing with the report of the enquiry officer, called upon the petitioner rightly to furnish his

explanation as to why the report dated 16.12.2003 filed by the enquiry officer should not be disregarded. The disciplinary authority, in the

meanwhile, finding that some more allegations have not been properly included in the charge memo, by adding two fresh allegations, called for

explanation from the petitioner. Therefore, the approach adopted by the disciplinary authority by issuing the present impugned proceedings dated

13.8.2007 cannot be found fault with, as the petitioner, having participated in the enquiry, is bound to submit his written representation and only

after the final order is passed, he can approach the court. Therefore, it was pleaded by the learned Additional Government Pleader, in support of

the impugned order, that the present writ petition is to be treated as a premature one, as it is not open to the petitioner to challenge the present

impugned proceedings calling upon him to submit the explanation only. It was also further submitted that when the disciplinary authority has not

reached any adverse conclusion, that proceeding cannot be impugned for the reason that the disciplinary authority, on receiving the further

representation from the petitioner, may even accept the said explanation, resultantly, he may even drop the charge memo by falling in line with the

report submitted by the enquiry officer on 16.12.2003.

This Court is not able to agree with the submissions of the learned Additional Government Pleader for the respondents for three reasons. Firstly,

when the petitioner was subjected to a departmental proceeding by issuance of the charge memo dated 28.12.2001, refuting the above said

allegations mentioned therein, the petitioner filed his explanation on 4.7.2002. After receipt of the explanation, the disciplinary authority, disagreeing

with the explanation, ordered for enquiry, finally, the enquiry officer submitted his report on 28.10.2002 exonerating the petitioner. Thereafter, the

disciplinary authority once again appointed another enquiry officer and directed him to go into the same charges contained in the earlier charge

memo dated 28.12.2001. The second enquiry officer also, on completion of enquiry, finding no merits in the charges, exonerated the petitioner

from all charges by submitting his report dated 16.12.2003. Even after the second report submitted by the enquiry officer exonerating the petitioner

from the charges, the disciplinary authority, after sleeping over the matter for about four long years, issued the present impugned proceeding dated

13.8.2007 stating that the report submitted by the second enquiry officer exonerating the petitioner on 16.12.2003 cannot be accepted. Although

the disciplinary authority has got ample power to deviate from the report of the enquiry officer, by issuing a differing note to the delinquent officer

calling upon him to submit his explanation, the disciplinary authority cannot add at this stage any more fresh allegation or new charge in the differing

note. Sadly, in the present case, when the petitioner proved the case in his favour by making the two enquiry officers to accept his explanation to

drop the charges, the disciplinary authority, while issuing the impugned proceeding dated 13.8.2007 calling upon the petitioner to show cause as to

why the report dated 16.12.2003 exonerating the petitioner should not be disregarded, ought not to have, in my considered opinion, added any

more new allegations. But, in the present case, unfortunately, the disciplinary authority, having committed infirmity in appointing the second enquiry

officer, without even calling for any explanation from the petitioner, once again committed another error in abandoning the second report and also,

deviating from the said report, has not only called for explanation from the petitioner to show cause as to why the said report should not be

disregarded, but, unfortunately, added two more allegations. Ironically, in the impugned proceeding dated 13.8.2007, the disciplinary authority has

also mentioned that the final order also would be passed after receiving the written representation from the petitioner on the differing note. This

again shows that the disciplinary authority is not going to have any enquiry on the new allegations added in the differing note which in turn clearly

indicates the vindictive approach to punish the petitioner somehow or other that is impermissible in law. In this context, it is relevant to recall the

ratio laid down by this Court in the case of K. Loganathan Vs. The Director of Rural Development and The Collector, wherein this Court, while

considering an identical and similar issue, has made it clear that the mere fact that the petitioner did not protest against ordering of a fresh enquiry

and co-operated with the enquiry officer, the second respondent should not have appointed the second enquiry officer without calling for an

explanation from the petitioner. However, when the second enquiry officer was also directed to go into the same allegations, on completion of the

enquiry, he has also submitted his report on 16.12.2003 again exonerating the petitioner. At this juncture, the disciplinary authority has wrongly

added two more allegations in his differing note and called for explanation from the petitioner not only on the differing note, but also on the two

more allegations without putting him into further enquiry to disprove the allegations. Therefore, it goes to show that the first respondent has made

up his mind to proceed against the petitioner for imposing a suitable punishment. The said approach is not in accordance with law.

One another judgment of this Court in the case of S.C. Tamil Selvan v. board of Tamil Nadu Minerals Ltd., Chennai and another, (2008) 7

MLJ 318 also may be usefully cited herein, wherein this Court has held that when an enquiry report was submitted by the enquiry officer and if it is

found to be irregular, it is open to the disciplinary authority to either discredit it or record a finding on his own. But he cannot seek for a second

report on the very same materials. The above judgments of this Court would make the position clear that the error committed by the disciplinary

authority in conducting the departmental proceeding repeatedly against the exonerating reports filed by the two enquiry officers and again including

two more fresh allegations, that too after four long years from the date of receipt of the report from the second enquiry officer, will no doubt

amount to cause great prejudice to the legal rights of the petitioner. Apart from the above, it should be also mentioned herein that when the second

respondent-District Collector, Ramanathapuram had issued the first charge memo dated 28.12.2001 against the three delinquent officers including

the petitioner, after receiving the report dated 16.12.2003 exonerating all the three persons, the first respondent-disciplinary authority has chosen

to pass the proceedings dated 8.1.2008 not to proceed against one of the co-delinquents, who was holding the post like that of the petitioner.

While so, it is not known as to why the petitioner has been overlooked without applying the same yardstick. In any event, when this Court has

found that the disciplinary authority cannot add any fresh allegation or charge in the differing note, while calling upon the petitioner to submit his

explanation, as it is not legally sustainable, the impugned proceedings cannot stand to legal scrutiny. Therefore, finding no merits whatsoever from

the impugned proceedings issued by the disciplinary authority, this Court has no other option except to interfere with the impugned order.

Accordingly, by setting aside the impugned order, the writ petition stands allowed. However, there is no order as to costs.