Challenging the impugned order of the 1st respondent in Proceedings No.16571/2004/DPC.2.3. dated 21.4.2004 enhancing the punishment on the petitioner by the 2nd respondent in Na.Ka.Nga 5/46977/97 dated 30.09.2003, the present Writ Petition has been filed.
2. The case of the petitioner is that the petitioner while working as a Watchman in the Office of the Divisional Development Officer, Cheranmadevi in the year 1997, he took the office Jeep without prior permission of the authorities concerned and got involved in a fatal accident and he was responsible for the death of one Sankarammal. Based on the same, a criminal case was registered against the petitioner. While so, the petitioner was issued with a Charge Memo dated 14.05.1997 by the department and totally, six charges were framed against him. After issuing the charge memo, the Enquiry Officer conducted a detailed enquiry and submitted his report on 18.06.2003. Though the Enquiry Officer gave a finding that all the charges framed against the petitioner were not proved, the Original Authority, namely, the 2nd respondent herein, not accepting the findings of the Enquiry Officer, issued an order dated 30.09.2003 imposing the punishment of stoppage of increment for two years with cumulative effect. Aggrieved over the same, the petitioner filed an appeal before the 1st respondent Appellate Authority. The 1st respondent enhanced the punishment of stoppage of increment from 2 years to 3 years with cumulative effect. Hence the present Writ Petition.
3. Learned Counsel for the petitioner would vehemently contend that the 2nd respondent has passed the impugned order of stoppage of increment for 2 years with cumulative effect without affording any opportunity to put forth his case though the Enquiry Officer in his Enquiry Report has held that the charges against the petitioner were not proved. Hence, on that ground, the impugned order of the 2nd respondent has to be set aside. In support of his contention, the learned Counsel for the petitioner would rely on a decision of the Hon'ble Supreme Court in Lav Nigam vs. Chairman and Managing Director, ITI Limited and another reported in (2006) 9 Supreme Court Cases 440. Following the principles laid down in that decision, he prays for allowing the present Writ Petition.
4. Heard the learned Government Advocate appearing for the respondents.
5. I have considered the submissions made on either side and I have also gone through the materials available on record.
6. A perusal of the decision of the Hon'ble Supreme Court reported in (2006) 9 Supreme Court Cases 440 would disclose that in an identical circumstance, the Supreme Court by citing a decision in Punjab National Bank v. Kunj Behari Misra reported in (1998) 7 SCC 84 has set aside the impugned orders and held that that the Disciplinary Authority has a right to have a contra view, however, an opportunity to be given to the delinquent officer to make further representation establishing his rights before the Original Authority. Without giving such opportunity to the delinquent officer, the Original Authority taking a decision contra to the Enquiry Officer's Report is bad in law. In this regard, it is useful to extract paragraph Nos.9, 10 and 14 and 15 of the aforesaid decision hereunder :
''9. 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.
10.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 conclusion 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.
...
13. 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.
14. The proceeding 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.`'
7. In the case on hand, on a perusal of the records, it appears that the 2nd respondent, namely, the Collector, Tirunelveli, Tirunelveli District, did not give any opportunity to the petitioner to make a representation and the 1st respondent Appellate Authority has not given any opportunity to the petitioner before enhancing the punishment. Hence, it is clear that both the authorities have violated the principles of natural justice. Hence, the impugned order of the 1st respondent dated 21.04.2004 and the order of the 2nd respondent dated 30.09.2003 are liable to be set aside and accordingly they are set aside.
8. However, considering the facts and circumstances of the matter, I remand the matter back to the Original Authority, namely, the Collector, Tirunelveli, Tirunelveli District-the 2nd respondent herein, who in turn, issue a fresh show cause notice setting out the grounds for not agreeing with the Enquiry Officer's Report. The said exercise shall be completed within a period of six months from the date of receipt of a copy of this Order.
9. With the above direction, the Writ Petition stands allowed.
No costs.
12.09.2017 tsi To
1. The Director of Rural Development, Chennai-15.
2. The Collector, Tirunelveli, Tirunelveli District.
3. The Divisional Development Officer, Cheranmahadevi, Tirunelveli District.
M.DHANDAPANI, J.
tsi W.P.No.32150 of 2004 12.09.2017