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Judgment
K.Chandru
All the three Writ Petitions were filed by the same petitioner who was working as Lecturer in the Department of Indian History, University of
Madras. In the 1st Writ Petition No.23590 of 2007, the petitioner challenged an order dated 19.5.2004 and after setting aside the same sought for
a direction to pay the arrears of salary and other emoluments with effect from 14.11.2003. By the impugned order, the petitioner was imposed
with a penalty of withholding of increment for a period of three years with cumulative effect under Rule 17(a) of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules and the period of suspension undergone by him was to be treated as leave on loss of pay. As against the said order,
the petitioner sent a further representation against the punishment and that was rejected by the Registrar of the University. Once again further
communication was also issued by further order dated 31.5.2007 stating that his request to reconsider the penalty cannot be considered. That Writ
Petition was admitted on 31.7.2007. Pending the Writ Petition, in the application for interim stay in M.P.No.1 of 2007, this Court dismissed the
application on the ground that the petitioner had already suffered the penalty and there was no case for grant of stay. Thereafter, the petitioner filed
M.P.Nos.2 to 4 of 2007 seeking for accepting an additional affidavit and for amendment of the prayer and no orders have been passed in those
applications. M.P.No.1 of 2008 he sought for fixing an early date and this Court directed the matter to be listed for final disposal during August
2008. For reasons unexplained, the matter was not heard as already indicated above. The petitioner filed a second Writ Petition being
W.P.No.36911 of 2007 seeking to challenge an order dated 11.10.2007, denying his request for promotion to the post of Lecturer Senior Scale.
By the impugned communication, the petitioner was informed that under the career advancement scheme, a person will be eligible for placement in
the senior scale if the individual with Ph.D., qualification had completed 4 years of service after regular appointment and the petitioner completed
only three years of service from the date of regular appointment to the date of punishment period. Since he has completed only 3 years before
award of punishment and the punishment of postponement of three years increment will be a bar to deny promotion for 5 years, his request cannot
be considered. That Writ Petition was admitted on 12.12.2007. Pending the Writ Petition, in the application for interim stay, interim stay was
granted. But the application for interim direction was dismissed by this Court. On notice from this Court, a counter affidavit has been filed dated
5.12.2008. The petitioner filed yet another application for fixing him in the senior scale in M.P.No.1 of 2008 and no orders have been passed in
the said application.
The petitioner also filed a third Writ Petition challenging an order dated 25.1.2011, wherein and by which he was given promotion to the post of
Assistant Professor Stage-2 with AGP of Rs.7,000/- in the scale of pay of Rs.15600-39100 with effect from 19.5.2009. The petitioner instead of
promotion to be granted from the year 2009 wanted the promotion from the year 2004. That Writ Petition was admitted on 11.4.2011.
Since the petitioner and the respondents are the same parties and the issue arises out of the petitioner''s promotion under the Career
Advancement Scheme and his penalty, they were grouped together and a common order is passed.
Heard the arguments of Mr.Dalit Tiger C.Ponnusamy, learned counsel for the petitioner and Mrs.G.Thilagavathi, learned Standing Counsel for
the University of Madras.
Insofar as W.P.No.36911 of 2007 and 9140 of 2011 is concerned, both arise under the Career Advancement Scheme. In the Writ Petition
No.36911 of 2007, he was denied career advancement to senior scale only on the ground that he does not have four years of service after regular
appointment. As per UGC guidelines, Career Advancement Scheme promotions are awarded to the faculty members based on their service and
other academic achievements. Admittedly the petitioner has not put in four years of service required for promotion to the post. The impugned
order challenged in Writ Petition No.36911 of 2007 cannot be countenanced by this Court. Hence, W.P.No.36911 of 2007 stands dismissed.
In W.P.No.9140 OF 2011, though the petitioner was given promotion during the year 2009, as he had undergone penalty of three years
withholding of increment, certainly that operates as a bar for consideration. Unless the petitioner succeeds to set aside the penalty, the Writ Petition
No.9140 of 2011 cannot also be considered. Hence, W.P.No.9140 of 2011 stands dismissed.
This leaves out the first Writ Petition No.23590 of 2007 regarding the imposition of penalty of postponement of three years increment. The
petitioner who was the Lecturer in Indian History was accused of demanding household articles and money from the M.Phil., students who
worked under his guidance for as gratification for correcting and approving their dissertation and having continuously harassed them to make them
to meet his demands. He was placed under suspension by an order dated 14.11.2004. Subsequently, a charge memo was framed against him
containing several allegations vide charge memo dated 18.12.2003. The charge memo was supported by 9 documents and the list of witnesses by
whom the charges were framed against the petitioner includes 8 names.
The charges levelled against him are as follows:
CHARGE:Dr.S.Kuppusamy, Lecturer (under suspension), Department of Indian History, University of Madras is charged of having demanded
household articles and money from five M.Phil students who worked under his guidance for correcting and approving their M.Phil Dissertations.
After having accepted the same he continuously harassed them to make them meet his demands and thus obtained illegal gratification and valuable
things by misusing his official faculty position for personal gains.
Dr.S.Kuppusamy is thus charged of having violated Sub-Code Nos:(vi) and (viii) under the caption Teachers and the Students of Code of
Professional Ethics for University Teachers incorporated in Statute 10(a) of Chapter IX, and Madras University Employees_ Conduct Rule
Nos:2(a) calling for absolute integrity and 3 calling for serving the University honestly and faithfully and endeavouring to promote the interests of the
University, besides not doing anything which is unbecoming of an employee of the University of Madras.
In the meanwhile, the Syndicate appointed Rev.Fr.Dr.V.Joseph xavier, Ph.D., the then Principal, Loyola College, Chennai as enquiry officer.
The petitioner gave a written defence statement dated 23.3.2004. The enquiry officer, who was an outsider to the University conducted enquiry
and gave a report dated 5.3.2004. In that report in paragraph No.34, he gave the following finding:
In the whole process of examination-in-chief and cross-examination the Prosecution witnesses could not establish any fact relating to the
charge. They could not answer clearly when cross examined and made contradicting statements. They have not also produced evidences to
establish their allegations as done in the preliminary inquiry. In the basis of points of determination drawn in paragraphs 31(a) to (i) it has been
analysed as to how the facts could not be established by the Prosecution Witnesses in the regular inquiry. Hence, on the basis of all the said points,
I have to inevitably hold that the facts are not established with conclusive and clinching evidences. Consequently, no article of the charge can be
held as proved.
But, however, in paragraph No.37, he had made the following remarks:
In the said letter, he had used words like ""I undertake to rectify the defects arising out of my activities and undo such of the unapproved
activities"". This seems to indicate that thre was some kind of transaction between the delinquent employee, Dr.S.Kuppusamy and the M.Phil
students who worked under his guidance for their M.Phil programmes. It was possible that there was some demand made, though it could not be
conclusively proved with evidences. From the behaviour of the delinquent employee, Dr.S.Kuppusamy, throughout the inquiry, one could could
understand, he could have demanded some kind of gratification from the students. Hence, I hold that there was some substance in the complaints
of the students.
On the basis of the enquiry officer''s report, a further explanation was called for. In the explanation, he stated that the enquiry officer''s report in
paragraph No.34 should be accepted and Paragraph 37 is merely the nature of opinion, which cannot form part of the enquiry officer''s report.
Notwithstanding the same, the University by the impugned order dated 19.5.2004 imposed the penalty as follows:.
.. the resolution of the Syndicate dated 8.4.2004, which considered the report of the Enquiry Officer, Rev.Fr.Dr.V.Joseph Xavier, S.J. Principal,
Loyola College, Chennai and member of the Syndicate, holding the charges proved, framed under rule 17(b) of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules against Dr.S.Kuppusamy and resolved as follows:
RESOLVED after due consideration of the further representation dated 29.4.2004 of Dr.S.Kuppusamy, Lecturer (under suspension), Department
of Indian History, University of Madras, the delinquent employee, that the punishment of withholding of increment for a period of three years with
cumulative effect be imposed on him under rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules instead of 17(b) of the said
rules and the suspension ordered be revoked with immediate effect.
RESOLVED FURTHER that the period of suspension undergone by Dr.S.Kuppusamy, Lecturer, Department of Indian History, be treated as
leave on loss of pay.
In pursuance of the above resolution the suspension ordered in the Official Communication cited at reference (1) on the said Dr.S.Kuppusamy is
revoked with immediate effect and he is directed to join duty immediately. The punishment of withholding of increment for a period of three years
with cumulative effect under rule 17(a) of the said rules instead of 17(b) of the said rules is imposed on the said Dr.S.Kuppusamy and the period of
suspension undergone by him is treated as leave on loss of pay. The details of the same would be intimated separately.
In the counter affidavit filed, in paragraph No.9, it was stated as follows:
His submission in the said letter was that he would undertake to rectify his defect arising out of his activities and undo such of the unapproved
activities. The petitioner argues that these sentences do not give any meaning of his admission of guilt to the charges. The Enquiry Officer has
interpreted these sentences that there was some kind of transaction between the delinquent employee and M.Phil students who worked under his
guidance and it was possible that there was some demand made. The Enquiry Officer further observed that in paragraph 37 of Enquiry report that
from the behaviour of the delinquent employee throughout the enquiry, one could understand that the petitioner could have demanded some kind of
gratification from the students. The approach of the Enquiry Officer is absolutely correct and in accordance with the provision to prove the charges
on the basis of preponderance of probabilities. The Enquiry Officer proved the charges quite lawfully and there was no lacuna. (Emphasis added).
The learned counsel for the petitioner contended that since the charge against the petitioner was not proved by the enquiry officer, accepting
the said report, they cannot punish the petitioner. What was contained in paragraph 37 extracted above is only in the nature of opinion.
Mrs.G.Thilagavathi, learned counsel for the respondents contended that the paragraph 37 is also a finding of the enquiry officer, which proved
the petitioner as guilty of the misconduct.
But, in the present case, the University wants to proceed with the enquiry officer''s report, though certainly the major charge levelled against the
petitioner was not proved. Even as per the enquiry officer''s report, paragraph 37 is only general in nature and does not refer to any particular
finding and it is too vague. If the University wants to disagree with the enquiry officer''s report, it can always be done by giving a fresh show cause
notice by referring to the evidence on record. While agreeing with the report, they cannot find the petitioner guilty.
In the present case, obviously, the University is of the opinion that the charges were proved, in which event, they should disagree with the
report and should give a copy of the report to the petitioner. In such circumstances, there is no bar for the University to disagree with the report, in
case there are materials to that effect. After calling for explanation from the petitioner on the enquiry officer''s report, they should impose proper
penalty. The present procedure adopted by the University is not supported by law.
The Supreme Court in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, has held that where there is a disagreement with the
enquiry report, prior notice should be given for the disagreement and thereafter calling for further explanation, appropriate penalty should be
imposed.
The same view is reiterated in Lav Nigam v. Chairman & MD, ITI Ltd. reported in (2006) 9 SCC 440. In paragraphs 9 to 14, the Supreme
Court held as follows:
Challenging the orders of the respondent authorities the appellant filed a writ petition before the High Court. The appellant specifically raised the
issue that the disciplinary authority was obliged to give a separate show-cause notice if the disciplinary authority differed with the inquiry officer.
The High Court also held that there was no need to give two separate show-cause notices one before the disciplinary authority found against the
employee while differing with the view of the inquiry officer, and another against the proposed punishment. It was further held that the two notices
could be combined in one. The writ petition was accordingly dismissed.
The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the
view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the
appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a
notice relating to the punishment proposed.
In Punjab National Bank v. Kunj Behari Misra1 a Bench of this Court considered Regulation 7(2) of the Punjab National Bank Officer
Employees_ (Discipline and Appeal) Regulations, 1977. The Regulation itself did not provide for the giving of any notice before the disciplinary
authority differed with the view of the enquiry officer. This Court held: (SCC p.97, para 19)
The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof,
whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such
charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its
findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to
persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already
observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of
misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer._
This view has been reiterated in Yoginath D. Bagde v. State of Maharashtra. In this case also Rule 9(2) of the Maharashtra Civil Services
(Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent
officer before differing with the view of the enquiry officer. The Court said: (SCC p.758, para 29)
But the requirement of _hearing_ in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to
be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to
the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any
error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent
officer the _TENTATIVE_ reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that
the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not
germane and the finding of _not guilty_ already recorded by the enquiring authority was not liable to be interfered with
(See also State Bank of India v. K.P. Narayanan Kutty.)
We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was given
before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was
merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained.
The appeal is accordingly allowed and the decision of the High Court is set aside.
The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the appellant
indicating his tentative disagreement with the findings of the inquiry officer.
Under the circumstances, the penalty imposed on the petitioner stands set aside and the matter is remanded back to the University of Madras
for fresh disposal in accordance with law and in the light of the observation made by this Court. The Writ Petition No.23590 of 2007 stands
allowed to the extent indicated above. In the result, W.P.23590 of 2007 stands allowed to the extent indicated above. W.P.No.36911 of 2007
and W.P.Nos.9140 of 2011 stand dismissed. No costs. The connected Miscellaneous Petitions are closed.