DATED :: 01-11-2010
CORAM
THE HONOURABLE MR.JUSTICE V.DHANAPALAN
W.P.No.21891 OF 2008
C.Elumalai ...Petitioner
-vs-
1.The Secretary to the Government of Tamil Nadu,
Housing and Urban Development,
Fort St.George,
Chennai-9.
2.The Chairman,
Tamil Nadu Housing Board,
Nandanam,
Chennai-35.
3.The Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-35.
4.The Secretary and Personnel Officer,
Tamil Nadu Housing Board,
Nandanam,
Chennai-35. ... ...Respondents
Petition under Article 226 of the Constitution of India.
For petitioner : Dr.R.Sampathkumar
For respondents : Mr.A.Vijaya Kumar
O R D E R
This Writ Petition has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records relating to the Charge Memo No.DCI/34863/2003, dated 13.11.2003, issued by the Managing Director, Tamil Nadu Housing Board, Chennai, third respondent herein; order of punishment No.DCI/34863/2003, dated 08.10.2004, passed by the Secretary and Personnel Officer, Tamil Nadu Housing Board, fourth respondent herein; order of rejection proceedings No.DCI/69749/04, dated 08.01.2007, passed by the Board communicated by the Managing Director, Tamil Nadu Housing Board, third respondent herein, and the G.O.No.225, dated 25.10.2007, passed by the Secretary to the Government of Tamil Nadu for Tamil Nadu Housing Board, first respondent herein; quash the same and consequently direct the respondents to reinstate the petitioner into service.
2. According to the petitioner, he served the respondent Board for 28 years initially as Personal Clerk, thereafter as Assistant and finally as Divisional Accountant; during his service with the Board, he has not committed any mistake nor any irregularity to the name and fame of the Board; that being so, he was served with a Charge Memo on 13.11.2003 with three charges, for which he gave proper explanation on 01.12.2003 to the third respondent; during the oral enquiry on 06.04.2004, the Enquiry Officer directed him to give a statement on the occurrence specified in the complaint made by one Prema, but, he requested the Enquiry Officer to allow him to submit his final explanation on the charges after due enquiry was made; he has given a statement in the said enquiry; the Enquiry Officer has not prepared any daily sheet during the oral enquiry and nothing has been supplied to him to that effect; the Superintending Engineer, who conducted the preliminary enquiry has not appeared on 06.04.2004 and nothing has been recorded from him; therefore, the documents shown in Annexure-III were not marked to prove the charges; Annexure-IV of the Charge Memo shows the list of witnesses as NIL; the Enquiry Officer has not given proper opportunity to him to submit a final reply on the enquiry; the Enquiry Officer has concluded his minutes without any explanation after the enquiry; the enquiry report was served on him, for which he submitted his further reply on 29.09.2004, but, the Secretary and Personnel Officer of Tamil Nadu Housing Board, Chennai, passed an order of dismissal from service vide his proceedings dated 08.10.2004; aggrieved over the said order of punishment, he preferred an appeal with the Chairman of the Tamil Nadu Housing Board on 25.10.2004, but the same was rejected, confirming the order of punishment and, thereafter, he preferred a review petition on 31.12.2007, but the same was rejected by the first respondent on 19.02.2008. Hence, this Writ Petition.
3. Respondents have filed a counter, stating as follows :
One D.Prema, w/o.P.Damodaran, Work Assistant, Nandanam Division, in her petition addressed to the Managing Director, Tamil Nadu Housing Board, dated 16.06.2003, stated that the petitioner who was working as Divisional Accountant in Nandanam Division had demanded a sum of Rs.500/- as bribe from her on 12.06.2003 at her residence for relieving her husband P.Damodaran, Work Assistant, from Nandanam Division to K.K.Nagar Division due to transfer orders issued by the Head Office, besides abusing her husband and threatening of dire consequences. Further, the complainant Prema requested to take action against the petitioner and give life protection to her and her husband. The Managing Director, Tamil Nadu Housing Board, on the said complaint, ordered to send the petition to police department to take action against the petitioner and also ordering departmental enquiry by the Superintending Engineer, Chennai Circle, against the petitioner. The Superintending Engineer, Chennai Circle, in his report, dated 30.07.2003, submitted that he conducted a discreet inquiry on the complaint of D.Prema with the connected delinquent and furnished his inquiry report. Thereafter, the Administrative Officer of Tamil Nadu Housing Board was appointed as Inquiry Officer for Departmental enquiry on the charges framed against the petitioner. The said Inquiry Officer conducted enquiry on 06.04.2004 with the petitioner and the complainant. Further enquiry was fixed for cross examination on 17.05.2004 and 21.06.2004. On both occasions, Prema had appeared for the enquiry, however, the petitioner did not attend. Pursuant to the enquiry, the Inquiry Officer has furnished his findings dated 30.08.2004, holding that the charges levelled against the petitioner are proved. Therefore, only based on the findings of the Inquiry Officer, the petitioner was dismissed from service.
4. Learned counsel for the petitioner has strenuously contended that the enquiry officer has not supplied the documents relied upon to frame the charges; he has not summoned the complainant; in the absence of any deposition by P.W.1 Prema, the complainant, coupled with no opportunity to cross-examine the witnesses, the entire enquiry is vitiated. He would further contend that the respondent has proceeded to impose a capital punishment of dismissal from service without considering the explanation of the petitioner and therefore the punishment is excessive, harsh and disproportionate to the charges. One more contention is raised by the counsel stating that the order of punishment was issued by the secretary and Personnel Officer, fourth respondent, who is incompetent to pass the order of punishment against the petitioner. In support of his contentions, the learned counsel has relied upon the following decisions : (i) a decision of the Hon'ble Supreme Court reported in AIR 1992 SC 2188 in the case of State of Punjab v. Ram Singh Ex-Constable.
"7. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale and may be a ground to take lenient view of giving an opportunity to reform. Despite giving such opportunities if the delinquent officer proved to be incorrigible and found completely unfit to remain in service then to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re-employment, if any, may meet the ends of justice. Take for instance the delinquent officer who is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word or cannot be read as and. It must be disjunctive and independent. The common link that connects both clauses is the gravest act/acts of misconduct."
(ii) another decision of the Hon'ble Supreme Court reported in (1995) 6 SCC 749 in the case of B.C. Chaturvedi v. Union of India :
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
(iii) a Supreme Court decision reported in (2003) 9 SCC 228 in the case of State of U.P. v. Jaikaran Singh.
"Normally, the Court in exercise of power under Article 226 does not interfere with the quantum of punishment alone if the charges are established against the delinquent and there is no lacuna in the procedure adopted in the departmental proceedings. But at times if the Court feels that the punishment inflicted is grossly unjust and shocks the conscience then in appropriate cases the Court may interfere. Having regard to the facts and circumstances of the present case and also taking into account the fact that the respondent had served the appellant organisation for about more than 12 years, we think the ends of justice would be met if the order of dismissal is altered to one of compulsory retirement. Accordingly, this appeal is allowed to the extent indicated above.
(iv) yet another decision of the Hon'ble Supreme Court reported in (2006) 3 SCC 173 in the case of Commissioner. of Police v. Syed Hussain
13. It is, therefore, beyond any doubt or dispute that the doctrine of proportionality has to be applied in appropriate case as the depth of judicial review will depend on the facts and circumstances of each case.
15. In a situation of this nature, keeping in view the nature of duties that a protector of law is required to perform, we are firmly of the opinion that the disciplinary authority cannot be said to have committed an error in imposing the punishment of removal from service upon the respondent, particularly when on earlier two occasions also he had been found guilty of commission of misconduct and punished therefor. The High Court thus committed a manifest error in arriving at a finding that the respondent had unblemished record for 28 years. We are not sure whether the High Courts attention was drawn to the statements made in the counter-affidavit filed on behalf of the appellants herein before the Andhra Pradesh Administrative Tribunal which showed the contra but on the basis of the materials on record which was before the High Court such finding could not have been arrived at.
16. Furthermore, the punishment of removal from service is not imposed only in the case of fraud or defalcation of government funds but even where a misconduct is committed by a person who holds a position of trust and on whom society looks forward as a protector of law and in such cases punishment of removal from service cannot be said to be wholly disproportionate, and thus the same was not even violative of the doctrine of proportionality. (v) a decision of the Hon'ble Supreme Court reported in (2009) 7 SCC 248 in the case of Ramanuj Pandey v. State of M.P.
"8. In Commr. of Police v. Syed Hussain2, this Court observed that: (SCC pp. 176-77, paras 10 & 13)
10. It is one thing to say that order passed by the statutory authority is wholly arbitrary and thus violative of Article 14 of the Constitution and thus liable to be set aside, but it is another thing to say that the discretionary jurisdiction exercised by such authority should not ordinarily be interfered with by a superior court while exercising its power of judicial review unless one or the other ground upon which and on the basis whereof the power of judicial review can be exercised, exists.
13. It is, therefore, beyond any doubt or dispute that the doctrine of proportionality has to be applied in appropriate case as the depth of judicial review will depend on the facts and circumstances of each case.
11. While considering the power to interfere with the order of punishment, this Court in Rangaswami v. State of T.N.3, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty. Accordingly, the punishment of the appellant of dismissal from services as imposed by the disciplinary authority is substituted to one of compulsory retirement from the date of his dismissal from service i.e. 7-5-1992.
12. In view of the above discussion, the appeal is partly allowed. The impugned order passed by the High Court is partly set aside. No order as to costs."
(vi) yet another decision of the Hon'ble Supreme Court reported in CDJ 2009 SC 1206 in the case of Union of India Vs. Gyan Chand Chattar.
"There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct Initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been agitation by the Railway Staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the Railway Station. The Enquiry Officer has taken into consideration the non-existing material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eyes of law There could be no case of substantial misdemeanour against the respondent on either of the charges except Charge No.6 on which major penalty could be imposed. Charge No.6 is totally vague and no enquiry could be conducted against the respondent on such a charge."
(vii) a decision of this Court reported in CDJ 2007 MHC 424 in the case of B.Padmaiah Vs. The Union of India, rep. by the Secretary & Others.
"21. As rightly pointed out by the learned counsel for the petitioner, even in the enquiry, the Enquiry Officer proceeded with a point whether the constable B.Padmaiah demanded money from Ravichandran, Supervisor of Rajeshwari Contractors for supervising the grass loading in OTA area. In such circumstances, as rightly pointed out by the learned counsel for the petitioner in the light of the decision of the Supreme Court in Hardwari Lal's case, non-examination of the material witness, viz., Ravichandran has prejudicied the petitioner. We are also satisfied that the infirmities pointed out would undoubtedly amount to violation of principles of natural justice. Therefore, the impugned orders are liable to be set aside. The failure to examine the complainant whose complaint is the basis for the disciplinary action against the petitioner and the failure to provide an opportunity to the petitioner to test the veracity of the complaint made against him has resulted in the deprivation of right of the petitioner amounting to gross violation of principles of natural justice and thereby, making the entire disciplinary proceedings vitiated. In view of the specific statement of P.W.4 Dan Ram, who conducted the body search of the petitioner that no money was found in his pocket and he took canteen coupons from his pocket, the contrary conclusion arrived at by the Enquiry Officer and accepted by the disciplinary authority cannot be sustained. We are also satisfied that the failure to provide defence assistance to the petitioner is a violation of the provisions of Rule 34 of CISF Rules, besides the violation of the principles of natural justice. All these material and relevant aspects have not been properly considered by the appellate and revisional authorities.
5. On the other hand, learned counsel for the respondents would contend that the order of punishment was passed after taking into account the charge that the petitioner has demanded illegal gratification based on the enquiry report and that the authorities have duly considered the explanation submitted by the petitioner and imposed the punishment. It is also his contention that by order of Managing Director, the Secretary and Personnel Officer has signed the order and therefore he is the competent authority on behalf of the Board to pass the impugned order. In order to substantiate his stand, the learned counsel has relied on the following :
(i) a decision of the Hon'ble Supreme Court reported in AIR 1997 SC 2286 in the case of High Court of Judicature at Bombay through its Registrar v. Udaysingh
"9. The law on the nature of the imposition of the penalties, has been summed up in paragraph 18 thus:
A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal,it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
10. Accordingly, the order of the Tribunal in reversing the imposition of the penalty was set aside. In another judgment in State of T.N. v. S. Subramaniam5, this Court has considered the scope of the power of judicial review vis-a-vis reappreciation of evidence and concluded as under:
The Tribunal appreciated the evidence of the complainant and according to it the evidence of the complainant was discrepant and held that the appellant had not satisfactorily proved that the respondent had demanded and accepted illegal gratification. The Tribunal trenched upon appreciation of evidence of the complainant, did not rely on it to prove the above charges. On that basis, it set aside the order of removal. Thus this appeal by special leave.
The only question is whether the Tribunal was right in its conclusion to appreciate the evidence and to reach its own finding that the charge has not been proved. The Tribunal is not a court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by Central Administrative Tribunals Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court vide B.C. Chaturvedi v. Union of India, State of T.N. v. T.V. Venugopalan, Union of India v. Upendra Singh, Govt. of T.N. v. A. Rajapandian and B.C. Chaturvedi v. Union of India. In view of the settled legal position, the Tribunal has committed serious error of law in appreciation of the evidence and in coming to its own conclusion that the charge had not been proved. Thus we hold that the view of the Tribunal is ex facie illegal. The order is accordingly set aside. OA/TP/WP stands dismissed.
11. These two judgments squarely cover the controversy in this case.
12. It is seen that the evidence came to be recorded pursuant to the complaint made by Smt Kundanben, defendant in the suit for eviction. It is true that due to time-lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there are bound to be some discrepancies in evidence. But the disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favourable to a party has been proved. In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the statements to be recorded from the advocates and the complaint. At that stage, the respondent was not working at that station since he had already been transferred. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises whether their evidence is acceptable or not. In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When that evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified.
13. Under these circumstances, the question arises whether the view taken by the High Court could be supported by the evidence on record or whether it is based on no evidence at all. From the narration of the above facts, it would be difficult to reach a conclusion that the finding reached by the High Court is based on no evidence at all. The necessary conclusion is that the misconduct alleged against the respondent stands proved. The question then is what would be the nature of punishment to be imposed in the circumstances? Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant interference. (ii) another decision of the Hon'ble Supreme Court reported in (2003) 4 SCC 364 in the case of Chairman and Managing Director, United Commercial Bank v. P.C.Kakkar
"10. In Union of India v. G. Ganayutham 17 this Court summed up the position relating to proportionality in paras 31 and 32, which read as follows:
31. The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury2 test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury2 test. (2) The court would not interfere with the administrators decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU3 (1985 AC 374) principles. (3)(a) As per Bugdaycay, Brind and Smith as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury2 and CCSU3 principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of proportionality and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.
32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of proportionality. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to irrationality, there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in outrageous defiance of logic. Neither Wednesbury nor CCSU3 tests are satisfied. We have still to explain Ranjit Thakur .
11. The common thread running through in all these decisions is that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case2 the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed."
6. I have heard the learned counsel for the parties and also gone through the records.
7. The petitioner, while working with the respondent Board as Divisional Accountant in Nandanam Division from 10.04.2002 to 01.07.2003, was issued with a Charge Memo, dated 13.11.2003, with the following charges :
"Charge No.1:- That the said Thiru C.Elumalai, Assistant (then Divisional Accountant, Tirunelveli Housing Unit while working in Nandam Division as Divisional Accountant from 10-04-2002 to 01-07-2003 has demanded a sum of Rs.500/- as illegal gratification on 12.06.2003 from Tmt.Prema, W/o.Thiru P.Damodaran, Work Assistant, Nandanam Division at her residence for relieving her husband from the Nandam Division and for using unparliamentary words against them and for threatening them. Charge No.2:- That the said Thiru C.Elumalai, Assistant (then Divisional Accountant), Tirunelveli Housing Unit has degraded the name of the organization by the above act and proves himself unworthy person to hold the post of Divisional Accountant.
Charge No.3:- That the above act he has violated under Regulation 32-A of Tamil Nadu Housing Board Service Regulation and Section-20 of Tamil Nadu Housing Board Officers and Servants Conduct Regulations,1963."
8. The petitioner submitted his explanation on 01.12.2003, denying the above charges. Thereafter, an enquiry was conducted and a report submitted. The Inquiry Officer, based on the depositions and also after hearing the delinquent officer/petitioner has held that Charges 1,2 and 3 framed against the petitioner are held proved. A copy of the report of the Inquiry Officer has been communicated to the individual for further representation if any on the findings of the Inquiry Officer on 01.09.2004. Accordingly, the petitioner submitted a further representation on 29.09.2004. Subsequently, the matter was examined in detail with the connected records and the irregularities committed by the individual are held proved in the following manner :
"That the delinquent officer has demanded a sum of Rs.500/- as illegal gratification on 12.06.2003 from Tmt.Prema, W/o.Thiru P.Damodharan, Work Assistant, Nandanam Division at her residence for relieving her husband from the Nandanam Division and for using unparliamentary words against them and for threatening them and degraded the name of the organization by the above act and proved himself unworthy person to hold the post of Divisional Accountant at the time of offence."
9. Under the above circumstances, it has been concluded by the competent authority to dismiss the petitioner from the service of Tamil Nadu Housing Board. As such, the petitioner was dismissed from service by an order of the fourth respondent, dated 08.10.2004, against which the petitioner preferred an appeal and the same came to be dismissed by the appellate authority, confirming the order of punishment. Thereafter, the petitioner preferred a review petition on 31.12.2007 and the same was also rejected by the first respondent on 19.02.2008.
10. It is well settled that in the matter of imposition of sentence, the scope of interference of the High Court is very limited and restricted to exceptional cases and it cannot be exercised without sufficient reasons. However, the High Court has jurisdiction to interfere with the quantum of punishment in appropriate cases, where orders of punishment are passed disproportionate to the charges levelled against the individual. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the Court, cannot be subjected to judicial review. Also, the High Court cannot interfere with the discretion exercised by the disciplinary authority or the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on a host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds previous penalty, if any, and the discipline required to be maintained in the department or establishment he works.
11. The right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted.
12. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officers findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
13. 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 officers report and the delinquent employees 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 employees 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.
14. 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 proposed 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 employees reply to the enquiry officers 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 show cause against the proposed penalty and of considering the reply 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 officers 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.
15. Hence, it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officers report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employees right to defend himself against the charges levelled against him. A denial of the enquiry officers report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. This is the law laid down by the Supreme Court in ECIL v. B. Karunakar, (1993) 4 SCC 727.
16. In the instant case, the Inquiry Officer conducted enquiry on 06.04.2004 with the petitioner and the complainant. Further enquiry was fixed for cross examination on 17.05.2004 and 21.06.2004. On both occasions, Prema had appeared for the enquiry, however, the petitioner did not attend. Pursuant to the enquiry, the Inquiry Officer has furnished his findings dated 30.08.2004, holding that the charges levelled against the petitioner are proved. Even in the affidavit, it is admitted by the petitioner that the enquiry report was served on him, for which he submitted his further reply on 29.09.2004. Therefore, the contention of the learned counsel for the petitioner that the Enquiry Officer has not given proper opportunity to the petitioner to submit a final reply on the enquiry and that the Enquiry Officer has concluded his minutes without any reasoning after the enquiry cannot be accepted.
17. However, it is to be noted that the order of punishment imposed by the disciplinary authority and confirmed by the appellate authority is extreme to the extent of dismissal from service. On a perusal of the charges, it appears that the petitioner has demanded a sum of Rs.500/- from one Tmt.Prema, wife of the petitioner, for relieving her husband from Nandanam Division. Upon giving due consideration to the findings of the Enquiry Officer and the decision arrived at by the disciplinary authority as well as the appellate authority, the punishment of dismissal, in the considered opinion of this Court, is disproportionate to the charges. Therefore, the imposition of punishment should be lesser than dismissal from service. It is also held by the Supreme Court in the case of B.C.Chaturvedi v. Union of India, (1995) 6 SCC 749, that the High Court, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court, it would appropriately mould the relief directing the disciplinary authority either to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. The said principle has been reiterated in the recent ruling of the Supreme Court in the case of Ramanuj Pandey Vs. State of Madhya Pradesh, reported in (2009) 7 SCC 248.
18. In view of the above ratio laid down by the Supreme Court and upon perusal of the entire material documents on record, I am of the firm view that the punishment imposed on the petitioner by the respondents is harsh and excessive and, therefore, it requires reconsideration and the orders of punishment passed by the authorities have to be set aside and that the matter has to be remanded to the authorities concerned. Accordingly, the orders impugned in this Writ Petition are set aside and the matter is remanded to the disciplinary authority to reconsider the entire case based on the material evidence and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order.
19. Writ Petition is allowed to the extent indicated above. No costs.
dixit
To
1.The Secretary to the Government of Tamil Nadu,
Housing and Urban Development,
Fort St.George,
Chennai-9.
2.The Chairman,
Tamil Nadu Housing Board,
Nandanam,
Chennai-35.
3.The Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-35.
4.The Secretary and Personnel Officer,
Tamil Nadu Housing Board,
Nandanam,
Chennai 35