The petitioner was the Executive Engineer at Anna Nagar Division, Tamil Nadu Housing Board (hereinafter referred to as 'the Board') between 4.6.1990 and 18.3.1994. Thereafter, he was transferred and posted in a different place. Once again, he was transferred and posted as Executive Engineer in the same Division with effect from 4.4.1996. He held the post of Executive Engineer at Anna Nagar Division till 2.3.1999. During the year 1993, while he was working at Anna Nagar Division, one Mr.S.Eswararaj was a Junior Engineer working under him. During the said period, the Tamil Nadu Steels, Arakonam through its Deputy General Manager (Marketing) had supplied steels to Anna Nagar Division of the Board. But some quantity of steel received by Mr.S.Eswararaj, Junior Engineer was not accounted for by him. The value of the same was Rs.8,94,204/-. It was also found that Mr.Eswararaj had made fraudulent entries for issue of cement of value Rs.18,352/-. Shortage of materials worth Rs.3,15,835/- was also found during the Annual Physical Verification. Mr.Eswararaj was in physical possession of the above materials and therefore, he was held responsible for the said shortage also. Thus, under the above three items, the total loss to the Board was calculated at Rs.12,28,391/-.
2. Considering the severity of the above irregularities, the Board requested the Government for taking up a detailed enquiry by the Directorate of Vigilance and Anti Corruption and accordingly, the Directorate of Vigilance and Anti Corruption, Chennai took up the matter for a detailed enquiry. In the meanwhile, the petitioner was placed under suspension by the Government under Memorandum No.DC.3/47805/96-1, dated 27.5.1999. Even before that, the petitioner was promoted as Superintending Engineer in the year 1998 itself. So on the date of suspension, namely, 27.5.1999, he was working as Superintending Engineer. His due date on attaining the age of superannuation fell on 31.5.1999. But 3 days before his actual day of retirement, he was placed under suspension as per the order of the Government dated 27.5.1999.
3. Subsequently, a charge memo was issued to the petitioner on 18.6.2000 by the Tamil Nadu Housing Board under Memo No.DC3/47805/96-4 levelling two charges. The first charge contains as many as 4 Sub-charges. The second charge is general in terms to say that the petitioner violated Regulation 32(A) of the Tamil Nadu Housing Board Regulations, 1969 and Regulation 20 of the Tamil Nadu Housing Board Officers and Servants Conduct Regulations, 1963.
4. The crux of the charges are as follows:
The petitioner, who was the Executive Engineer and Administrative Officer in Anna Nagar Division, was the Test Check Measuring Authority, but he miserably failed to supervise and test check the work of his subordinate Mr.S.Eswararaj, Junior Engineer and detect and report immediately the grave irregularities committed by Mr.S.Eswararaj for taking disciplinary action in the following manner :
1(i) The petitioner failed to supervise properly Mr.S.Eswararaj and conduct test check of the steels received from Tamil Nadu Steels Corporation and thus, the Board suffered a loss; and ii. The second Sub-charge is that having prepared false Delivery Note bearing No.9404/14.12.94 for the issue of 7.50 MT of cement valued at Rs.18,352.12 to the construction of 48 HIG Flats at Mdhavaram and made entries in the stores ledger by himself as issued, but not authenticated by the Junior Engineer in-charge of the work, leading to embezzlement of 7.50 MT of cement valued at Rs18,352.12, whereas Thiru S.Santhanaraj as Executive Engineer and Administrative Officer, Anna Nagar Division, has framed minor charges under Regulation 37(a) of the Tamil Nadu Housing Board Service Regulations, 1969, against Thiru S.Eswararaj, Junior Engineer only on 12.8.96 in Memo No.AN1/2817/94, dated 12.8.96 and recommended only on 10.3.97 in his D.O.Letter No.2817/94, dated 10.3.97 for taking action against Regulation 37(b) of the Tamil Nadu Housing Board Service Regulations, 1969.
iii. The third sub-charge is that having caused shortage of materials to a value of Rs.3,15,835/- as found out during the Annual Physical Verification of the Stores of Anna Nagar Division for the year 1993-94 conducted during 5/94 by Thiru G.Padmanabhan, Chartered Accountant and by Thiru K.Arockiaraj, Assistant Executive Engineer, resulting in monetary loss of Rs.3,15,835/- to the Tamil Nadu Housing Board, whereas Thiru S.Santhanaraj, as Executive Engineer and Administrative Officer, Anna Nagar Division has framed minor charges under Regulation 37(a) of the Tamil Nadu Housing Board Service Regulations, 1969, against Thiru S.Eswararaj, Junior Engineer only on 21.6.96 in Memo No.AN1/s945/93, dated 21.6.96 and recommended only on 10.3.97 in his D.O.Letter NO.AN1/2817/94, dated 10.3.97 for taking action under Regulation 37(b) of the Tamil Nadu Housing Board Service Regulations, 1969.
iv. The fourth sub-charge is that having prepared false Delivery Note No.2472/12.5.94 to cover up the shortage of materials to a value of Rs.3,04,567.60/- and having made entries in the Stores Ledger as if issued to the work of construction of 48 HIG Flats at Madhavaram without proper indent from the Junior Engineer in-charge of the work, whereas he has framed minor charges under Regulation 37(a) of the Tamil Nadu Housing Board Service Regulations, 1969 against Thiru S.Eswararaj, Junior Engineer, only on 21.6.96 in Memo No.AN1/945/93, dated 21.6.96 and recommended only on 10.3.97 in his D.O.Letter No.AN1/2817/94 dated 10.3.97 for taking action under Regulation 37(b) of the Tamil Nadu Housing Board Regulations, 1969 and thus Thiru S.Santhanaraj, Executive Engineer and Administrative Officer, Anna Nagar Division (now Superintending Engineer under suspension) has violated the Rules contained in para 8(a) of the Tamil Nadu Housing Board Works Code and he is also responsible for non-accounting of Steel received from Tamil Nadu Steels Limited and also for the other shortage of cement and steel, causing a total monetary loss of Rs.12,28,391.12 to the Tamil Nadu Housing Board.
2. The second charge is that, thus Thiru S.Santhanaraj, Executive Engineer and Administrative Officer (now Superintending Engineer under suspension) has violated Regulation 32(A) of the Tamil Nadu Housing Board Service Regulations, 1969 and Regulation 20 of the Tamil Nadu Housing Board Officers' and Servants Conduct Regulations, 1963.
5. The petitioner submitted his explanation on 30.6.2000 denying all the charges. Not satisfied with the same, the Board ordered for an enquiry. During enquiry, few witnesses were examined and documents were also marked in support of the charges. It appears that the petitioner also let in oral evidence. Having considered all the above, the Enquiry Officer submitted a report on 14.8.2001 holding that the charges were not proved against the petitioner.
6. On receipt of the said report of the Enquiry Officer, the Board did not agree with the finding of the Enquiry Officer. The Secretary and Personnel Officer of the Board by proceedings in Memo No.DC2/47805/96-3, dated 18.4.2002 issued proceedings deviating from the findings of the Enquiry Officer and holding that the petitioner was guilty of both the charges. In the said proceedings, the petitioner was called upon to submit his further explanation if any within 15 days. The petitioner, accordingly, submitted his explanation on 24.5.2002. Thereafter, the Board passed an order under Board Proceedings No.DC.II/47805/96 dated 19.12.2002 holding the petitioner guilty of the charges and imposing a punishment of dismissal from service as well as ordering to recover a sum of Rs.11.06 Lakhs from the petitioner. At this juncture, it should also be mentioned that on 31.5.1999, the petitioner was not allowed to retire and his service was extended and he has been under continued suspension till the date of dismissal. Challenging the above order of punishment, the petitioner has come up before this Court with this Writ Petition.
7. Though several grounds have been raised in this Writ Petition, the learned Counsel appearing for the Petitioner would focus on the following grounds:
i. The Enquiry Officer's Report is perfectly valid as the conclusions arrived at by the Enquiry Officer are all based on sound reasons and valid materials. Therefore, the Board ought not to have disagreed with the findings of the Enquiry Officer;
ii. The Board did not look into the evidence both oral and documentary or any other materials before coming to the conclusion that the Enquiry Officer's Report was not correct and that the charges stood proved;
iii. There was no tentative order passed by the Board deviating from the findings of the Enquiry Officer and such tentative order was not communicated to the petitioner. Instead, the order dated 18.4.2002 is a final order holding the petitioner guilty of charges. Thus, the Board has failed to follow the principles of natural justice and also the directions of the Honourable Supreme Court issued in this regard in several judgments; and iv. The order dated 18.4.2002 does not reflect the application of mind of the Board at all inasmuch as in the order there is no reference at all about any evidence either oral or documentary or any other materials which were placed during enquiry.
v. The respondent has considered all the irrelevant materials for coming to the conclusion that the petitioner is guilty of the charges. To substantiate this contention, it is stated that the respondent has taken into account the remark submitted by the Directorate of Vigilance and Anti Corruption.
vi. The report of the Vigilance and Anti Corruption has influenced the mind of the respondent Board in coming to the conclusion that the petitioner is guilty of the charges. As a matter of fact, the respondent has surrendered his authority to the jurisdiction of the Directorate of Vigilance and Anti Corruption and he has simply obeyed the directions of the Directorate of Vigilance and Anti Corruption.
vii. On facts, there are no materials to show that the petitioner is guilty of the charges. As a matter of fact, it was only the petitioner, who found the irregularities committed by Mr.Eswararaj and in this regard, even on 19.4.1996 itself, he called for explanation from Mr.S.Eswararaj and thereafter, on 26.9.1996 itself, he requested the higher authorities to initiate appropriate action against Mr.S.Eswararaj. Based on the report of the petitioner, charges were framed against Mr.Eswararaj by the Board. Therefore, the petitioner cannot be held guilty of any dereliction of duty in the matter of either supervision or in the matter of test check.
viii. The order of dismissal is thus, based on no materials and therefore, the same is liable to be interfered with.
8. A detailed counter has been filed by the respondents wherein it is contended as follows:
i. The petitioner being the Officer was responsible for the Supervision as well as for conducting test check of the goods received in the office. But, he failed to discharge his functions diligently which has resulted in huge loss to the Board. Had he vigilantly supervised and conducted test check of the steels received from Steel Corporation of India, the irregularities committed by Mr.Eswararaj would have been detected in time and further loss would have been averted. Thus, the petitioner has committed serious misconduct;
ii. Though sufficient materials were placed by way of evidence before the Enquiry Officer, without considering the same properly, the Enquiry Officer had held that the charges were not proved. On receipt of the report of the Enquiry Officer, the respondents considered all the above materials, appreciated the same and found that the charges were proved. That was the reason why the Board disagreed with the report of the Enquiry Officer and issued the proceedings dated 18.4.2002 calling upon the petitioner to submit his explanation;
iii. The Show Cause Notice dated 18.4.2002 is a comprehensive notice containing the reasons for deviation from the findings of the Enquiry Officer as well as affording opportunity to the petitioner to submit his explanation and thus, the said proceedings dated 18.4.2002 satisfies the legal requirements;
iv. On facts, there are sufficient materials to hold that the petitioner is guilty of charges and having regard to the seriousness of the charges levelled against him, the punishment of dismissal was imposed on him;
v. The power of this Court under
Article 226 of the Constitution of India is very limited inasmuch as it is for beyond the power of this Court to reappreciate the entire evidence and other materials let in before the Enquiry Officer and to come to its own conclusion to substitute the same in the place of the conclusions arrived at by the Enquiry Officer;
vi. Failure to supply the copy of the report of the Directorate of Vigilance and Anti Corruption has not caused any prejudice to the petitioner and therefore, the same cannot be a ground to quash the entire proceedings;
vii. The report of the Directorate of Vigilance and Anti Corruption is only by way of consultative measure and the same has not in any manner influenced the decision making process of the respondents; and viii. In any view of the matter, the punishment imposed on the petitioner is sustainable and the same does not require any interference at the hands of this Court.
9. I have heard the learned Counsel appearing for the petitioner, the learned Additional Advocate General appearing for the respondents and also perused the records carefully.
10. At the outset, I have to state that none of the charge alleges that the petitioner was in any manner involved in the irregularities committed by Mr.Eswararaj which resulted in huge loss to the Board. Indisputably, the loss was caused only by Mr.S.Eswararaj by making some fraudulent entries and by not accounting for the properties delivered by the Steel Corporation of India. Thus, there is no allegation as of now against the petitioner that he has committed either fraud or any other illegal act which resulted in the loss to the Board. Instead, all the charges relate only to the negligence on his part in the performance of his duty. To put it otherwise, the charges allege that though it was the duty of the petitioner to supervise the functions of Mr.S.Eswararaj and other subordinates and though it was his duty to conduct test check of the properties received by the Board, he did not promptly do the same. The crux of the charges would be to the effect that, had he been vigilant in supervising Mr.S.Eswararaj and other subordinates promptly and had he conducted test check, the irregularities committed by Mr.S.Esswararaj and other employees would have been detected soon after the irregularities were committed in which case, further loss to the Board would have been averted. It is further alleged that the petitioner recommended for framing of charges against Mr.S.Eswararaj only under Regulation 35 A for minor penalty instead recommending for disciplinary proceeding for a major penalty under Regulation 35-B. A close reading of the charges would reveal that except the above, the charges do not allege anything more against the petitioner.
11. Now coming to the defence of the petitioner, in his earliest explanation, he has stated that he properly supervised the functioning of his subordinates. The supply of steel by the Tamil Nadu Steels Corporation was not at all brought to the notice of the petitioner during his tenure. It came to light only when the Steel Corporation demanded a sum of Rs.10,23,000/- against credit supply of steels to the branch. It was only at that time, it came to light that Steel worth Rs.8.94,204/- had not been accounted for by Mr.S.Eswararaj. Immediately, thereafter, admittedly, he initiated action against Mr.S.Eswararaj and he called for explanation from him on 19.4.1996. It should also be noted that between 19.3.1994 and 3.4.1996, he was not in Anna Nagar Division at all as he was elsewhere working during the said period. He would further contend that on 26.9.1996 he reported the matter to the higher authorities for initiating appropriate action against Mr.S.Eswararaj. Thus, according to him, as soon as he came to know that such irregularities had been committed by Mr.S.Eswararaj, he took prompt action. In respect of shortage of materials value Rs.3,15,833/- noticed in Anna Nagar Division during Annual verification, the petitioner would submit that he cannot be held responsible for the same as the stock was not in his possession. Further, even if test check had been conducted, that would not have brought to light the shortage of materials.
12. In order to substantiate the rival stands, witnesses were examined and documents were exhibited on either side. The Enquiry Officer after having considered all the above materials held that the charges were not proved. Thus, the Enquiry Officer gave a clean chit to the petitioner.
13. Now come to the action of the Disciplinary Authority on the basis of the report of the Enquiry Officer. There can be no denial of the fact that the disciplinary authority is not bound by the conclusions arrived at by the Enquiry Officer. It is absolutely within the power of the Disciplinary Authority to deviate from the findings of the Enquiry Officer and to come to a different conclusion. But such conclusion cannot be arrived at in an arbitrary manner. It is well settled in a Catena of decisions that the Disciplinary Authority has to appreciate the entire materials available on record by way of evidence let in and on so appreciating, the Disciplinary Authority has to come to a tentative conclusion regarding the proof of the charges. It goes without saying that for arriving at such a tentative conclusion deviating from the conclusions of the Enquiry Officer, the Disciplinary Authority should state the materials which were considered, the grounds for coming to such a conclusion and the grounds as to why the conclusions arrived at by the Enquiry Officer were not acceptable. If only these requirements are satisfied, the Disciplinary Authority will get jurisdiction to proceed further.
14. In this regard, I may refer to the judgment of the Honourable Supreme Court in Punjab National Bank Vs. Kunj Behari Misra reported in AIR 1998 SC 2713 wherein in para 19 of the judgment, it has been held as follows:
"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."
In Ramkishan vs. Union of India reported in 1995 (6) SCC 157 in para 10, the Honourable Supreme Court has held as follows:
"The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect."
15. Now turning to the proceedings of the 2nd respondent dated 18.4.2002, I am at loss to find any such mention about the materials which were considered by the Disciplinary Authority, the grounds for deviating from the conclusions of the Enquiry Officer and the reasons for rejecting the report of the Enquiry Officer. The said proceedings dated 18.4.2002 would only reflect that there is no reference at all about the evidences both oral and documentary let in before the Enquiry Officer and other materials. Thus, the proceedings dated 18.4.2002 has been issued in an arbitrary manner by rejecting the report of the Enquiry Officer and to take a decision that the petitioner is guilty of the charges.
16. It is well settled (vide the judgment cited supra) that before taking a final decision that the delinquent is guilty of the charges, thereby proposing to deviate from the report of the Enquiry Officer wherein the Enquiry Officer has held that the charges have not been proved, it is for the Disciplinary Authority to arrive at a tentative conclusion and to record the same as indicated in the previous paragraph. Thereafter, as per law, he has to communicate the said tentative conclusion to the delinquent calling upon him to explain as to why the report of the Enquiry Officer should not be rejected and he should not be held that the charges had been proved. Only after receiving such explanation and after having considered the same, it is for the Disciplinary Authority thereafter, based on materials to finally hold that the charges have been proved and therefore, the Enquiry Officer's report is rejected.
17. In the case on hand, the above settled law has not been adhered to at all by the respondents. There was no tentative conclusion arrived at by him and before coming to the final conclusion, no opportunity whatsoever was given by the petitioner. What all that the learned Additional Advocate General would submit is that the proceedings dated 18.4.2002 is a comprehensive proceeding which satisfies all the requirements. I am not persuaded by the said argument. When the law requires that before arriving at a final conclusion, there should be a tentative conclusion and the final conclusion should be arrived at only after affording an opportunity to the petitioner, the same should be scrupulously followed. This procedure is one of the facets of the principles of natural justice and failure to do so in the case on hand has vitiated the entire further proceedings.
18. Now coming to the final order passed by the Disciplinary Authority, absolutely, there are no reasons stated as to why the petitioner is held guilty. In that order what I am able to find is that the Disciplinary Authority has imposed punishment holding the petitioner guilty because the Directorate of Vigilance and Anti Corruption reported that the Enquiry Officer's Report was not correct and that charges have been proved. But, curiously, copy of the report of the Directorate of the Vigilance and Anti Corruption had not been furnished though the conclusion to deviate from the findings of the Enquiry Officer was based on the said report also. In this regard, I may refer to the judgment of the Honourable Supreme Court in State Bank of India Vs. D.C.Aggarwal AND ANOTHER reported in 1992 AIR SCW page 3353 wherein it has been held as follows:
"...But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what Disciplinary Authority, but was examined and relied was certainly violative of procedural safeguard and contrary to fair and just inquiry....Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the Disciplinary Authority. May be that the Disciplinary Authority has recorded its own findings and it may be coincidental that reasoning and basis of returning and finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order..."
In the case on hand, admittedly, the report of the Vigilance and Anti Corruption which is the foundation for the deviation and the ultimate punishment was not furnished to the petitioner. Thus, the petitioner had no opportunity to make his comments about the said report. Such failure amounts to violation of principles of natural justice.
19. Further, I find, there is no findings anywhere by the Disciplinary Authority either in the proceedings dated 18.4.2002 or in the final order that the materials available on record by way of evidence have proved that the petitioner is guilty of charges and therefore, he is liable for punishment. Here is a case, where the punishment has been imposed based on no material. Therefore, the same is liable to be set aside.
20. The learned Additional Advocate General would submit that this Court cannot reappreciate the evidence so as to come to the conclusion that the charges have not been proved since such power is wanting under
Article 226 of the Constitution of India. Regarding this legal proposition, there can be no quarrel. I am conscious of the fact that this Court, while exercising its writ jurisdiction, cannot either convert itself into an Appellate Authority or a Revisional Authority so as to reappreciate the entire evidence and to take its own conclusions so as to substitute the same in the place of the conclusions arrived at by the Enquiry Officer as well as the Disciplinary Authority. In this case, I do not propose to indulge in reappreciating the evidence at all. But it is also settled law that when the findings of the Enquiry Officer as well as the Disciplinary Authority holding that an employee is guilty of charges, is either perverse or wholly based on no evidence, surely, this Court in exercise of its writ jurisdiction has to necessarily interfere with the ultimate punishment imposed upon employee. Applying the said principle, if the findings of the Disciplinary Authority both by the proceedings dated 18.4.2002 as well as the final order are looked into, as I have already stated, there are no reasons or grounds stated for such conclusion that the petitioner is guilty of the charges. In an arbitrary manner, such conclusion has been arrived at by the respondents holding the petitioner guilty. When that is the kind of conclusion arrived at by the respondents, surely, this Court has to hold that the finding is perverse and therefore, liable to be interfered with.
21. Now coming to the report of the Vigilance and Anti Corruption Department, the learned Additional Advocate General would submit that it was only by way of consultative process that such report was received from the Vigilance and Anti corruption Department after forwarding a copy of the Enquiry Officer's report. The learned Additional Advocate General would rely on the Manual of the Directorate of Vigilance and Anti Corruption which is a compilation of several Government Orders and Circulars. All these orders and circulars are only Executive Orders and Circulars. One such Government Order issued under G.O.Ms.No.2181, Public (Ser-B), dated 4.7.1994 directs that in all cases where the Disciplinary proceedings are started on a report from the Directorate of Vigilance and Anti Corruption, the Disciplinary Authority should send a copy of the Enquiry Officer's Report to the Directorate of Vigilance and Anti Corruption immediately after the enquiry is over. While passing final orders on the Enquiry Officer's Report, the Disciplinary Authority should mark a copy thereof to the Directorate of Vigilance and Anti Corruption. The learned Additional Advocate General would rely upon the same to say that it is in accordance with this Government order which is compiled in the Manual, the report of the Enquiry Officer was submitted to the Directorate of Vigilance and Anti Corruption from whom a report was received. In simple terms, the contention of the learned Additional Advocate General is that it is only a consultative measure and the same has not in any manner influenced the decision of the Disciplinary Authority.
22. In this regard, I must state that by means of executive instructions in order to have control over the officers and to keep clean administration, the Government was right in directing the authorities to forward a copy of the Enquiry Officer's Report to the Directorate of Vigilance and Anti Corruption. There cannot be anything illegal in getting such opinion from the Directorate of Vigilance and Anti Corruption. But while taking a decision on the report of the Enquiry Officer, the Disciplinary Authority should apply his mind into various materials available by way of evidence and independently come to a conclusion as to whether the charges have been proved or not. As I have already stated in the case on hand, the Disciplinary Authority has failed to do so. It is for this reason also, I have to hold that the punishment cannot be sustained.
23. To sum up, the impugned order of punishment is liable to be quashed since the same has not been arrived at by following the principles of natural justice and on considering the materials available by way of evidence in support of the charges. I would state that neither in the proceedings dated 18.4.2002 nor in the final order, there is any reference about any evidence or material upon which, according to the Disciplinary Authority, the charges have been proved. It is on this ground also, I am inclined to interfere with the punishment imposed on the petitioner.
24. Nextly, the learned Counsel for the petitioner would submit that the alleged transaction took place in the year 1993, but the Disciplinary Proceedings were initiated just three days before his retirement in the year 1999. Here again I have to state that nowhere he raised a contention before the Enquiry Officer that because of the delay he was prejudiced in his defence. As a matter of fact, he filed another Writ Petition before this Court in W.P.No.21272/2002 challenging the charge memorandum. But when the said Writ Petition was pending, he participated in the enquiry, but did not raise any objection regarding the proceedings on the ground of delay and therefore, it is too late in the day for him to now contend that because of the delay he has been seriously prejudiced. Therefore, the punishment cannot be quashed on the ground of delay.
25. Since I am inclined to quash the punishment on the above technical grounds, I do not want to go into other grounds raised in the Writ Petition. It is contended by the learned Counsel for the petitioner that the materials placed by way of oral and documentary evidence would go to establish that the petitioner is not guilty of the charges. But the learned Additional Advocate General would submit that if such process is undertaken, it would surely go to show that the charges have been proved. For a moment, I would state that this Court cannot convert itself into either an Enquiry Officer or an Appellate Authority or a Revisional Authority so as to reappreciate the entire evidence and to adjudicate upon the above disputed questions of fact. Therefore, I do not venture to undertake the ordeal of appreciating the entire evidence available on record to hold either the petitioner is guilty or not guilty of the charges as the same could be done only by the Disciplinary Authority.
26. Having come to the above conclusions, in normal course, it would have been appropriate for this Court to remand the matter back to the Disciplinary Authority to reconsider or to reappreciate all the materials placed by way of evidence and on such appreciation, in the event of the Disciplinary Authority coming to the tentative conclusion that the charges have been proved against the petitioner and then to proceed further in accordance with law as per the procedure indicated above. But the said course is not at all possible in this case. First of all, as I have already stated, the alleged occurrence relating to the charges took place in the year 1993. The proceedings were initiated in the year 1999. The petitioner's due date of retirement was on 31.5.1999. Now, he is about 68 years, a senior citizen. At this length of time, if the petitioner is again made to face the proceedings, it will not be in the interest of justice as it would cause enormous amount of prejudice to the petitioner. As I have already stated it is not a case of serious charges like fraud, misappropriation, embezzlement, criminal breach of trust etc. On the other hand, all the charges relate only to dereliction of duty. So, going by the nature of the charges, the age of the petitioner, the fact that the occurrence took place in the year 1993 and all the above attending circumstances, I am of the view that it is not a fit case to remand the matter back to the Disciplinary Authority for passing a fresh order. In view of the above, I hold that the Writ Petition must succeed.
27. In the result, the Writ Petition is allowed and the impugned order of punishment is set aside. No costs.
27.08.2010 Index : Yes/No Internet : Yes/No tsi To
1. The Managing Director, Tamil Nadu Housing Board, Madras-35.
2. The Secretary and Personnel Officer, Tamil Nadu Housing Board, Madras-35.
S.NAGAMUTHU, J.
tsi W.P.No.46859 of 2002 27.08.2010