E. Padmanabhan, J.
1. The writ petitioner has prayed for the issue of a writ of certiorarified mandamus calling for the records of the first respondent in G.O. Ms.367 Housing and Urban Development Department H.B.1(2) Department dated 5.12.96 and that of the Tamil Nadu Housing Board in Board's Office proceedings No. YNB2/38885/85 dated 5.3.96 (2nd respondent) quash the same and, consequently, direct the 2nd respondent not to stop the increment and pay him all the accrued arrears and consequential benefits.
2. The writ petition has been pending at the stage of notice of motion since 31.2.1997. The respondents have been served. Respondents 1 and 2 have filed separate counters. With the consent of either side, the writ petition itself is taken up for final disposal. Heard Ms. Rita Chandrasekaran, learned counsel appearing for the petitioner, Ms. V. Velumani, learned Additional Government Pleader appearing for the first respondent and Mr. D. Veerasekaran, learned counsel appearing for the 2nd respondent.
3. The writ petitioner is employed as Works Clerk in the Tamil Nadu Housing Board on 23.2.87. The 2nd respondent framed five charges against the petitioner. The petitioner denied the charges and submitted a detailed explanation. Not being satisfied with the explanation, the 2nd respondent appointed an enquiry officer. Pending the enquiry, the petitioner was placed under suspension. The criminal case was also registered at the instance of the 2nd respondent against the petitioner for alleged offence under Sections 468, 471 and 420 IPC. The criminal complaint filed on 16.10.1995 was dropped on 2.9.97. The Accounts Officer of the Board was appointed as the enquiry officer. After enquiry the enquiry officer submitted his report. As seen from the enquiry report, the petitioner has been exonerated of the charges 1, 2, 3 and 5, but found guilty in respect of charge No. 4. No further orders have been passed at that stage nor the 2nd respondent proceeded further, but appointed another enquiry officer, namely, Senior Accounts Officer, to enquire once again. The enquiry officer appointed on the second occasion, once again conducted an enquiry and submitted a report, while exonerated the petitioner in entirety.
4. The enquiry report was placed before the 2nd respondent. By resolution dated 30.5.95, the Board curiously resolved to reject the enquiry report on the view that the enquiry officer has failed to follow the procedure prescribed as required and decided to impose the punishment of stoppage of increment for a period of one year with cumulative effect and reinstated the petitioner in service, besides regularised the period of suspension of 8-1/2 years as leave, if eligible.
5. As seen from the orders of the first respondent, the very Board's resolution was forwarded to the State Government for its approval and the Government approved the said resolution dated 30.5.95 by its letter dated 31.1.96. The petitioner was reinstated on 7.2.96. On being communicated with the impugned proceedings of the 2nd respondent Board, the petitioner preferred an appeal before the first respondent, State Government. At that stage the petitioner was not aware of the approval of the Housing Board resolution by the State Government. The State Government by the impugned Government Order dated 5.12.96 declined to consider the appeal as the State Government has already approved the resolution No. 12.03 dated 30.5.95 of the 2nd respondent Board imposing the penalty of stoppage of increment for a period of one year with cumulative effect. In other words, the first respondent declined to entertain the appeal and rejected the same. Being aggrieved, the present writ petition has been filed.
6. The facts narrated above are not in dispute. The material portion of the counter affidavit filed by the first respondent, which has a bearing are extracted hereunder :-
"3. Regarding paragraph 2 of the affidavit, it is submitted that the petitioner was transferred from Hosur Housing Unit to Special Division VI, Chennai, during the year 1983. It was found that he has forged the official documents of Erode Housing Unit and sent letter to the Executive Engineer/Special Division VI, Chennai to refund the sum of Rs.1,050/= recovered from him. Hence, charges were framed against him under Tamil Nadu Housing Board Service Regulation 37(b) for the forgery of official documents. Thiru T. Kuppusamy, then Accounts Officer, K.K. Nagar Circle, Tamil Nadu Housing Board (Retired) was appointed as Enquiry Officer to conduct the enquiry. The Enquiry Officer in his enquiry report has stated that charge No. 1, 2, 3 and 5 are not proved and charge No. 4 alone is proved. As per orders of the Managing Director, Tamil Nadu Housing Board, Thiru K. Gopinath, Senior Accounts Officer was appointed as Enquiry Officer to conduct a fresh enquiry. The Enquiry Officer in his enquiry report has stated that charge No. 1 to 5 are not proved.
4) With regard to paragraph 3 of the affidavit, it is submitted that the matter was placed before the Board for taking a decision. The Board in its Resolution No. 12.05 dated 30.5.1995 has resolved to reject the Enquiry Officer's report for not having followed the prescribed procedure of enquiry and for not examining the issue with reference to the charges framed and for not appreciating the pre-ponderances of evidences available in this case. The Board also resolved to recommend to the Government a punishment of stoppage of increment for a period of one year with cumulative effect to Thiru P.K. Natarajan, Works Clerk after reinstating him to the services of the Board and regularising the period of suspension with eligible leave.
5) With regard to paragraph 4 of the affidavit, it is submitted that the Board's Resolution No. 12.05 dated 30.5.1995 was received in he Government for approval. The Government in their letter (2D) No. 34 dated 31.1.1996 have approved the Board's Resolution.
6) With regard to paragraph 6 of the affidavit, it is submitted that the petitioner has preferred an appeal to the Government against the orders issued awarding punishment to him. As called for by the Government, the Board's remarks has been sent to Government on the appeal petition of Thiru P.K. Natarajan, Works Clerk.
7) With regard to paragraph 7 of the affidavit, it is submitted that the Government in G.O.Ms. No. 367, Housing and Urban Development Department dated 5.12.1996 have rejected the appeal petition preferred by the petitioner and the same was served to him in Board's memo dated 16.12.1996."
7. The 2nd respondent has filed a separate counter after setting out the details of misconduct alleged to have been committed, the details of police complaint, the details of charges framed and admitted the contents of the two enquiry report. It is admitted that in the 2nd enquiry report, the petitioner has been exonerated of all the five charges. The material portions of the counter affidavit of the 2nd respondent, which are relevant, reads thus :-
"8) As regards para No. 3 it is submitted that the matter was placed before the Board for taking a decision. The Board in its Resolution No. 12.05, dated 30.5.1995 has resolved to reject the Enquiry Officer's report for not having followed the prescribed procedure of enquiry and for not examining the issue with reference to the charges framed and for not appreciating the pre-ponderances of evidence available in this case. The Board also resolved to recommend to the Government a punishment of stoppage of increment for a period of one year with cumulative effect to the petitioner/Works Clerk after reinstating him to the services of the Board and regularising the period of suspension with eligible leave. * * * *
9) As regards para No. 4 it is submitted that the Board's Resolution No. 12.05 dated 30.5.1995 was sent to Government for approval. The Government in their letter 2D No. 34, dated 31.1.1996 have approved the Board's Resolution.
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12) As regards para No. 7, it is submitted that the Government in their G.O.Ms. No. 367 (Housing and Urban Development Department) dated 5.12.1996 have rejected the appeal petition preferred by the petitioner and the same was served on him in Board's Memo dated 16.12.1996.
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16) As regards para 9(g) that charges were framed against the petitioner under Tamil Nadu Housing Board Service Regulation 37(b) and he has furnished his explanation. Enquiry was conducted and the matter was placed before the Board for taking a decision. After obtaining approval of the Government on Board's resolution, final orders were issued to the individual. Therefore, the question of violation of principles of natural justice does not arise."
8. The learned counsel for the petitioner, Ms. Rita Chandrasekaran, precisely contended that when the petitioner has been exonerated of the charges by the enquiry officer, the 2nd respondent Board before dissenting from the report or rejecting the report should have afforded an opportunity to the petitioner to state his objections and this failure is volatile of principles of natural justice as well as the statutory regulations and the proceedings of both the respondents are vitiated. The learned counsel for the petitioner relied upon the pronouncement of the Supreme Court in PUNJAB NATIONAL BANK VS. KUNJ BEHARI MISRA in support of her
contentions. The learned counsel also contended that there is not even a finding that the petitioner is guilty of one or other charge, which were framed.
9. Per contra, the learned counsel for the respondents contended that the Board is the competent authority to impose minor penalty and being a minor punishment, it is not necessary to issue a show cause notice, that there is no violation of principles of natural justice and that no interference is called for with the impugned proceedings.
10. The points that arise for consideration in this writ petition are :-
"I) Whether the 2nd respondent Housing Board's action in imposing the punishment, though a minor punishment, is sustainable without a finding that the petitioner is guilty of the charges ?
ii) Whether the impugned proceedings of 2nd respondent is vitiated for non-compliance with principles of natural justice in rejecting the enquiry officer's report without affording an opportunity and imposing the punishment ?
iii) Whether the impugned proceedings of the 2nd respondent as approved by the first respondent is vitiated by arbitrariness, non-application of mind and volatile of Article 14 of the Constitution ?"
All the above points could be considered together as they are interconnected.
11. The following facts are not in controversy :-
"1) Five charges were framed against the petitioner ;
2) The first enquiry officer found the petitioner guilty of Charge No. 4 alone and exonerated the petitioner in respect of the remaining charges 1 to 3 and 5 ;
3) Without any obvious reason and in violation of the statutory rule, the 2nd enquiry officer was appointed and the petitioner has been vexed to undergo an enquiry once again ;
4) The 2nd enquiry officer submitted a report exonerating the petitioner in respect of all the five charges ;
5) After submission of the 2nd report neither the enquiry officer's report nor a notice has been served on the petitioner before the 2nd respondent differing with the enquiry report rejecting the findings nor called upon the petitioner to state his objections, if any ;
6) Only along with the impugned proceedings imposing the punishment of stoppage of increment, the enquiry report has been communicated."
12. In the light of the above admitted facts, it is essential to refer to the material portion of the Board's proceedings and it is useful to extract the same hereunder. The material portion reads thus :-
"The matter relating to the taking of disciplinary action against Thiru P.K. Natarajan, Works Clerk was placed before the Board. It was resolved in Resolution No. 12.03 dated 30.5.95 that the Enquiry Report of the Enquiry Officer can be ignored since he has not followed the enquiry procedures and has not examined the witnesses as required under law. Therefore it was decided to stop the increment of Thiru P.K. Natarajan for a period of one year with cumulative effect and reinstate him into service and to regularise the period of suspension as leave to which he is eligible.
The above resolution of the Board was sent to the Government for its approval. The Government in their letter 2D/34 dated 31.1.96 have approved the Resolution 12.03 dated 30.5.95 sent by the Board."
13. From On a reading of the above portion of the impugned proceedings, it is clear that the 2nd respondent Board resolved to ignore the enquiry officer's report and decided to impose the punishment of stoppage of increment for a period of one year with cumulative effect. The Government has also approved the said resolution and the material portion of the G.O. impugned reads thus :-
"jpU. gp.nf. eluh$d;> kPJ vLf;fg;gl;l xGq;F eltof;ifapd; kPJ Kot[[ vLg;gjw;fhf ,f;fUj;JU thhpaj;jpd; Kd; itf;fg;gl;lJ vdt[k;> thhpak; jdJ jPh;khdk; vz;.12.03> ehs;'30.5.95y; tprhuiz mjpfhhp tprhuizapy; tiuaWf;fg;gl;l eilKiwfisf; filgpof;fhjjhy; mtUila tprhuiz mwpf;ifia epuhfhpf;ft[k;> jpU. gp.nf. eluh$d;> gzp vGj;jUf;F Xuhz;L fhy Cjpa cau;it jpuz;l gaDld; epWj;jp itf;ft[k; mtUila jw;fhypf gzp ePf;f fhyj;ij jFe;j tpLg;ghf Kiwg;gLj;jt[k; jPh;khdpj;jJ vdt[k;> nkw;fz;l thupaj; jPh;khdj;jpw;F muR jdJ fojk; (2o) vz;.34> ehs;'31.1.96y; xg;g[jy; mspj;jJ. murpd; xg;g[jYf;fpzq;f jpU. gp.nf. eluh$d; 7.2.96y; kPz;Lk; gzpapy; mkh;j;jg;gl;lhh; vd;W thhpaj;jpd; nkyhz;ik ,af;Fdh; Twpa[s;shh;.
4. nkw;Twg;gl;l fhuzq;fshy; thhpaj;jpd; gzp vGj;juhf gzpg[hpa[k; jpU. gp.nf. eluh$d;> jd;kPJ vLf;fg;gl;;l xGq;F eltof;ifia vjph;j;J mspj;Js;s nky;KiwaPl;il mDkjpf;f ,ayhJ vd;W muR jPh;khdpj;J> mij epuhfhpj;J MizapLfpwJ."
(EQUIVALENT ENGLISH TRANSLATION AS SUBMITTED BY THE PETITIONER)
"The enquiry findings relating to the charges levelled against Thiru P.K. Natarajan was placed before the Board. Before taking decision, the Board in its resolution 12.03 dated 30.5.95 have resolved that the Enquiry Officer has not followed the enquiry procedure and therefore rejected his findings and the increment of Thiru P.K. Natarajan was ordered to be stopped for a period of one year with cumulative effect and the period of suspension to be treated as leave to which he is eligible. To this resolution, the Government in their letter (2D) H.34 dated 31.1.96 has accepted to this and accordingly Thiru P.K. Natarajan was reinstated in service from 7.2.96.
4. For the reasons stated above the appeal petition of Thiru P.K. Natarajan, Works Clerk, Tamil Nadu Housing Board, against the punishment award to him by the management cannot be considered by the Government and his appeal is therefore rejected by the Government."
14. In the counter affidavit also the above passage are admitted as seen from para-4 of the counter affidavit filed by the first respondent. Further, as set out in para-4 of the counter, it is seen that the Board has resolved to recommend to the Government to impose the punishment of stoppage of increment, which the Government has approved.
15. On a reading of the above passage, it is clear that the Board has not accepted the enquiry officer's report exonerating the petitioner in respect of all the charges, but resolved to reject the report in toto, which is in favour of the petitioner. The reason for rejecting the report is that the enquiry officer has not followed the enquiry procedure. After having rejected the enquiry officer's report, as seen from the proceedings of both the respondents, stoppage of increment has been imposed for a period of one year. As pointed out, there is total non-application of mind and the respondents have acted arbitrarily in imposing the punishment without even recording a finding that the petitioner is guilty of one or more of the charges.
16. It may be open to the disciplinary authority to dissent from the enquiry report setting out reasons for such difference, but the disciplinary authority has to issue a notice to the delinquent as to why the disciplinary authority is differing with the findings reported by the enquiry officer. In this case, the Board has resolved to reject the enquiry report and decided to impose the punishment. It cannot be discerned from the impugned proceedings as to which of the misconduct or charge or imputation such a punishment is imposed or to which of the charge the petitioner is found guilty. This demonstrates not only arbitrary exercise of power by the 2nd respondent but also total non-application of mind on its part as well as on the part of the first respondent, the appellate authority. Admittedly, the first respondent has approved the resolution by its letter. Even the very portion of the first respondent's order, it is clear that the order of the first respondent suffers with the same illegality.
17. In other words, while rejecting or ignoring the report, atleast there should have been some exercise or application of mind by the disciplinary authority or for that matter the appellate authority that the petitioner is guilty of one or more misconduct or charges for which he was proceeded or atleast part of imputations before imposing minor penalty. This is totally absent. Without even holding or recording a finding that the petitioner is guilty of the imputation or charges or alleged misconduct, the penalty of stoppage of increment has been imposed against the petitioner. This is not only an error on the face of the record, but it demonstrates total non-application of mind and arbitrary exercise of power by both the respondents.
18. The minimum requirement being to record a finding that the petitioner is guilty of misconduct or one or more charges or imputation before imposing the punishment. This is totally lacking. It is unfortunate that the highest authorities, namely, the Board and the State Government have not applied their mind. As a matter of routine and in a casual manner imposed the punishment without even recording a finding that the petitioner is guilty of one or more of the misconducts or imputations. It is fundamental that before imposing minor punishment as well, a finding has to be recorded that the delinquent is guilty of one or more imputations or charges. This is totally absent and this omission is fatal and vitiates the proceedings. Without a finding that the petitioner is guilty of imputations or charges, no punishment, much less minor punishment could be imposed.
19. The learned counsel for the respondent contended that without holding increment, being a minor punishment could very well be imposed after issuing a notice and calling upon the petitioner to show cause with respect to the imputations or charges. In this case, admittedly proceedings were initiated for a major punishment. Assuming for the purpose of argument that it is for imposition of a minor punishment, even then the minimum requirement being the disciplinary authority or for that matter the appellate authority should record a finding that the petitioner is guilty of one or more imputation or charge and without recording such a finding or conclusion, no penalty, much less minor penalty could be imposed.
20. Taking up the next contention, it is pointed out that in PUNJAB NATIONAL BANK VS. KUNJ BEHARI MISRA , a
three Judges Bench of the Supreme Court before which Bench conflicting views were referred to resolve the conflicting views. While answering the reference, the Apex Court held thus :-
"The Court explained that 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. Inquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. It is the second right which was taken away by the 42nd Amendment but the right of the charged officer to receive the report of the inquiry officer was an essential part of the first stage itself. This was expressed by the Court in the following words (at Pp.1070 and 1071 of AIR SCW):
"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 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 an 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 officer's 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.
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18. .... When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and the punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case (1994 AIR SCW 1050) (supra)."
The above pronouncement applies in all fours to the facts of the case and this Court holds that principles of natural justice has been violated and the respondents contentions cannot be countenanced.
21. The Apex Court in STATE OF MADRAS VS. A.R.SRINIVASAN reported in AIR 1966 SC 1827, has held thus :-
"It may be that in disciplinary proceedings taken against public servants, the technicalities of criminal law cannot be invoked, and the strict mode of proof prescribed by the Evidence Act may not be applied with equal rigour; but even in disciplinary proceedings, the charge framed against the public servant must be held to be proved before any punishment can be imposed on him."
22. In the present case, when the second enquiry officer has exonerated the petitioner of all the charges and when the 2nd respondent Board decides to dissent, it is required that an opportunity should have been afforded to the petitioner before finding guilty and imposing even a minor penalty. But in this case, it is not as if the Board has dissented from the enquiry officer's report, but it has rejected the report of the enquiry officer in toto. Such rejection of the enquiry officer's report may be valid or may not be valid, with which we are not concerned in this case. But while rejecting the enquiry officer's report, which is in favour of the writ petitioner, the 2nd respondent, without recording a finding that the petitioner is guilty of one or more of the imputations or charges, imposed the penalty of stoppage of increment with cumulative effect. Here again, it is not clear with respect to which of the imputations or charges the petitioner is being found guilty and the penalty is being imposed.
23. The first respondent, who is the appellate authority, while the 2nd respondent is the disciplinary authority. The 2nd respondent should, as a disciplinary authority imposed the punishment and it should not have forwarded its resolution to the first respondent for approval and it has abdicated its function and awaited for the approval. This again is an illegality. The proceedings of the 2nd respondent being statutory and quasi-judicial, the 2nd respondent should have exercised its powers independently and it should not have forwarded the resolution or its decision for approval by the first respondent and only after such approval penalty order is issued. This again is violative of the statutory service rule framed under The Tamil Nadu Housing Board Act.
24. The first respondent, which is the appellate authority under the statutory regulation, also on its part should have directed the 2nd respondent to decide independently. That is not the case here. But here the first respondent rejected the appeal of the petitioner on the sole reasoning that it has already approved the resolution of the 2nd respondent. This has resulted in denial of valuable opportunity of appeal.
25. In the circumstances, this Court answers that all the three points against the respondents and in favour of the petitioner.
26. In the result, the writ petition is allowed and the impugned proceedings of the 2nd respondent as well as the first respondent are quashed with a cost of Rs.3,000/= (Rupees Three Thousand only). As a consequence, this Court holds that the writ petitioner is entitled to all the benefits including arrears of salary, increments and all other concomitant service benefits. Consequently, connected miscellaneous petition is closed.