Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 3225 (MAD)

Secretary to Government v. P. Radhakrishnan

2014-09-10

G.CHOCKALINGAM, V.DHANAPALAN

body2014
Judgment V. Dhanapalan, J. 1. Heard Mr.S.Gomathinayagam, learned Additional Advocate General with Mr.T.N.Rajagopalan, learned Special Government Pleader appearing for the appellants and Ms.G.Sridevi Chandran, learned counsel appearing for the respondent. 2. Aggrieved by the order dated 08.10.2010 of the learned Single Judge made in W.P.(MD) No.7059 of 2007, wherein, the impugned order dated 22.12.2006 passed by the first respondent in making recovery against the petitioner was set aside, the respondents therein i.e. Backward Classes, Most Backward Classes and Minorities Welfare (BCI) Department, have come up with the present Writ Appeal. 3. According to the petitioner, who is the respondent herein, he was initially appointed as Typist through TNPSC and joined duty as Typist on 24.11.1966 in the office of the Directorate of Harijan Welfare Department, Chennai – 2. Subsequently, he gained several promotions and on 23.12.1999, he was promoted as District Backward Classes and Minority Welfare Officer and posted at Madurai. In the year 2001, the petitioner was promoted as Special Officer. He reached superannuation on 30.06.2014 and on the day of superannuation, he was permitted to retire without prejudice to the pending disciplinary proceedings. 4. When the petitioner was working as District Backward Classes and Minority Welfare Officer, Madurai, he was served with a Charge Memo vide Letter No.10006/BC1/2000-4, dated 21.09.2001 issued by the 1st respondent, containing three charges, alleging certain irregularities under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules, (hereinafter referred to 'Rules'). To the said charge memo, the petitioner submitted his explanation on 19.01.2001 specifically denying the first charge that he has not received the Bank order of the 2nd respondent till the date of passing of the Promotion order of three staffs, as there was a Government Order. With regard to the second charge that the Delinquent Officer has transferred 19 employees violating the orders of the Government banning General Transfer of Government Servants for the year 2000 vide Letter No.8258/S/2000-1, P & AR Department, dated 10.03.2000, the petitioner categorically explained that there was no ban in the Government Letter with regard to the request transfer and mutual transfer, where the Government need not pay Travelling Allowance. He has clearly explained that he has only entertained such Transfer Applications and thus, he has not violated the Government Letter. He has clearly explained that he has only entertained such Transfer Applications and thus, he has not violated the Government Letter. With regard to the third charge, the petitioner has stated that he has only followed the Government Order and did not violate Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973. 5. Further, the petitioner has stated that as per the Memo of the Commissioner for Disciplinary Authority, Salem vide No.119/2003/AA2 dated 10.03.2004, an enquiry was fixed on 16.03.2004 and 17.03.2004, and on receiving the same, he requested for change of date as he was held up in a Review Meeting from 15.03.2004 to 18.03.2004 in six Districts, i.e. Trichy, Perambalur, Karur, Thanjavur, Nagai and Thiruvarur as per the proceedings of the CCA and Most Backward Classes Welfare Department vide No.E1.S.Mu.Ve/273/04, dated 12.03.2004. Without giving an opportunity of oral hearing on some other day, the respondents completed the enquiry and submitted a report on 19.06.2004. 6. Further, based on the Enquiry Report of the Commissioner of Disciplinary Proceedings, Salem, in Letter No.109/2003/A2 dated 19.06.2004, further explanation was called for by the 1st respondent in Government Letter No.2148/Pi.Na 1(2)/03-10 dated 14.09.2004. The petitioner submitted his further explanation on 12.10.2004, wherein he has categorically stated his inability to attend the enquiry and requested for further enquiry. Inspite of his explanation and request on 23.11.2005, the 1st respondent issued a Show cause Notice calling up the petitioner to submit his explanation within 15 days as to why a recovery cannot be imposed on him for a sum of Rs.3,13,940/- and Rs.100/- to be cut from his pension for 12 months, to which, on 28.11.2005, the petitioner submitted his explanation. Inspite of it, the 1st respondent imposed punishment of recovery of Rs.100/- to be cut from the Pension and a sum of Rs.3,13,940/-, out of which Rs.2,39,069/- to be recovered from the DCRG and balance amount of Rs.74,871/-from his pension at the rate of Rs.921/- as first instalment and Rs.1,450/- for 51 months. Aggrieved by the same and having no other efficacious alternative remedy, the petitioner filed W.P.(MD) No.7059 of 2007 before this Court. 7. Resisting the averments of the petitioner, the respondents, in their counter affidavit, have stated as follows: 7.1. Aggrieved by the same and having no other efficacious alternative remedy, the petitioner filed W.P.(MD) No.7059 of 2007 before this Court. 7. Resisting the averments of the petitioner, the respondents, in their counter affidavit, have stated as follows: 7.1. The Director of Backward Classes and Minorities Welfare Department, in his letter No.B1.8384/99-2, dated 06.03.2000 had issued instructions to all the District Backward Classes and Minorities Welfare Officers not to fill up any vacant posts in the School and College Hostels in the cadre of Cooks in time scale of pay, cooks on consolidated pay, Office Assistant, Watchman-cum-servant either by direct recruitment or by transfer, especially not to appoint cooks and watchman-cum-servant in the time scale of pay. The Government in P & AR Department in Letter No.8258/S/2000-1, dated 10.03.2000 had issued continuance orders on temporary ban on general transfers for the year 2000. The Director of Backward Classes and Minorities Welfare in his D.O. Letter No.B1/8384/99 dated 19.06.2000 had instructed all the District Backward Classes & Minorities Welfare Officers not to fill up the existing and future vacancies for the post of cooks in the time scale of pay/Helpers on consolidated pay in the hostels until further orders from Government. The petitioner was promoted as District Backward Classes & Minorities Welfare Officer and posted in Madurai. He assumed charges as District Backward Classes & Minorities Welfare Officer, Madurai on 13.12.1999. While so, he had issued orders promoting 3 cook-helpers who were on consolidated pay of Rs.500/- p.m. as Cooks in the time scale of pay of Rs.2,550-55-3200 and effected transfer orders to 19 hostel staff when there were Government instructions not to fill up the posts of time scale Cook, Servant-cum-Watchman and Consolidated pay Cook-helper and ban on General Transfer of government Servants, was in vogue. 7.2. On knowing the irregularities committed by the petitioner, the Government transferred him and posted him as Special Officer (Planning) in the Directorate of Backward Classes. Subsequently, charges were framed against him under Rule 17(b) vide Government Letter No.10006/BC.I/2000-4, dated 21.09.2001. Subsequently, the Government decided to refer the case to the Commissioner for Disciplinary Proceedings, Chennai and the case was transferred to the Tribunal for Disciplinary Proceedings, Chennai for inquiry into the said charges. Subsequently, it was transferred to the Commissioner of Disciplinary Proceedings, Salem, who directed the petitioner to report for inquiry before him. Subsequently, the Government decided to refer the case to the Commissioner for Disciplinary Proceedings, Chennai and the case was transferred to the Tribunal for Disciplinary Proceedings, Chennai for inquiry into the said charges. Subsequently, it was transferred to the Commissioner of Disciplinary Proceedings, Salem, who directed the petitioner to report for inquiry before him. The petitioner sent a reply to the Commissioner of Disciplinary Proceedings that he was pre-occupied with official duties on those dates and requested to consider that the explanation already submitted by him would hold good. Therefore, the Commissioner of Tribunal for Disciplinary Proceedings, Salem, based on his explanations, sent the enquiry report to the Government on 24.06.2004 that all the charges were proved. Meanwhile, in G.O.(D) No.28, Backward Classes, Most Backward Classes and Minorities Welfare Department, dated 30.06.2004, he was allowed to retire on attaining the age of superannuation without prejudice to the pending disciplinary cases against him on 30.06.2004. He was then served on 14.09.2004 with a copy of the findings of the Tribunal for Disciplinary Proceedings, Salem to offer his explanation and the same was obtained from him. The Government, on careful examination of the charges framed, written statement of defence, findings of the Tribunal for Disciplinary Proceedings and his further representation along with connected records, have decided to hold the charges as proved. For the proved charges, the Government, after consultation with the Tamil Nadu Public Service Commission directed that the punishment of pension cut of Rs.100/-p.m. for a total period of 12 months be imposed on the petitioner and to recover a sum of Rs.3,13,940/-being the loss to Government and a sum of Rs.2,39,069/- from the DCRG, balance amount of Rs.74,871/- from his pension at the rate of Rs.921/- as 1st instalment and Rs.1,450/- for 51 instalments. 7.3. The respondents would contend that the petitioner had violated the instructions of the Government and Head of Departments and had filled the vacant posts by promoting Cook-helpers on consolidated pay to the post of Time scale Cook and also appointed the time scale Cooks in the post of Servant-cum-Watchman by transfer of service which has caused loss to the Government. Hence, charges were framed against him for the lapses under Rule 17(b) in G.O.Ms.No.28, dated 30.06.2004 and he was permitted to retire on 30.06.2004 without prejudice to the pending disciplinary cases against him. Hence, they sought dismissal of the Writ Petition. 8. Hence, charges were framed against him for the lapses under Rule 17(b) in G.O.Ms.No.28, dated 30.06.2004 and he was permitted to retire on 30.06.2004 without prejudice to the pending disciplinary cases against him. Hence, they sought dismissal of the Writ Petition. 8. This Court, taking note of the facts and circumstances of the case, allowed the Writ Petition, by holding as under: “11. There is one other additional fact which has to be considered namely that even otherwise, the disciplinary proceedings is vitiated by violation of the principles of natural justice. When once, the charges framed against the petitioner were categorically denied by him in the explanation, it is incumbent on the part of the disciplinary authority to conduct appropriate and fair enquiry. It is astonishing to note that when the Commissioner for Disciplinary Proceedings, Salem to whom the matter was referred, has called for the petitioner to participate in the enquiry on 16.03.2004 and 17.03.2004, it was not as if the petitioner has disobeyed the said direction of Commissioner for Disciplinary proceedings, Salem but he has only requested by informing him that he was to attend review meeting from 15.03.2004 to 18.03.2004 in six districts as per the proceedings of the Commissioner, dated 12.03.2004 which is relating to his duty and in fairness the Commissioner for Disciplinary Proceedings, Salem should have considered the genuine request and given an opportunity to the petitioner to participate in the enquiry especially when the charges were framed under Rule 17(b). On the other hand, the Commissioner, disciplinary authority, Salem has simply closed his eyes and treated as if he is entitled to conduct enquiry exparte and submit his report. The disciplinary authority in utter violation of principles of natural justice ignoring all canons of law has simply issued a show cause notice to the petitioner to offer explanation to the Enquiry Officer's Report. In fact even in the explanation, dated 12.10.2004, the petitioner has categorically stated that he was unable to attend the enquiry before the Commissioner of Disciplinary authority, Salem, on 16.03.2004 and 17.03.2004 because of his pre-occupation in his official duty in the respondent department and inspite of it, it is pertinent to note that the disciplinary authority has not even chosen to consider his explanation and straight away passed the impugned order of punishment which can never be as an order passed in accordance with law. Even on this ground of patent violation of principles of natural justice, the impugned order has to go apart from the want of jurisdiction on the part of the respondents in continuing the disciplinary proceedings under Pension Rules even after the retirement of the petitioner on the age of the superannuation without prejudice to the disciplinary proceedings. 12. In such view of the matter and looking into any angle, I am of the view that the impugned order of the first respondent in making recovery cannot be sustained in the eye of law. Accordingly, the impugned orders are set aside and the writ petition stands allowed. ...” 9. Learned Additional Advocate General appearing for the appellants would submit that there is no violation of principles of natural justice and an opportunity has been afforded to the respondent/Delinquent Officer to appear for an enquiry on 16.03.2004 and 17.03.2004. Instead of attending the enquiry, the respondent/Delinquent Officer has informed that he was preoccupied with official duties on those dates and sought for an oral hearing on some other date. Hence, he would contend that the decision of the learned Single Judge that there was denial of opportunity to the Delinquent Officer cannot be a ground to allow the Writ Petition. Pointing to the letter dated 19.10.2001 of the respondent/Delinquent Officer, learned Additional Advocate General would submit that the explanation given by him has been taken into account, examined and ultimately, a Report has been submitted, based on which, proceedings have been issued. While so, the learned Single Judge has no right to set aside the impugned order and allow the Writ Petition, as it cannot be sustained in the eye of law. It is also his contention that the procedures contemplated under Section 17(b) of the Rules have been scrupulously followed and there is no infirmity in the decision of the authorities to proceed further in the matter. 10. Per contra, learned counsel appearing for the respondent/Delinquent Officer would submit that as per Rule 17(b), an enquiry has to be conducted in the presence of the Delinquent Officer with the available witness by following the procedures contemplated under law and only then, the authority is competent to conclude the enquiry and submit a Report. 10. Per contra, learned counsel appearing for the respondent/Delinquent Officer would submit that as per Rule 17(b), an enquiry has to be conducted in the presence of the Delinquent Officer with the available witness by following the procedures contemplated under law and only then, the authority is competent to conclude the enquiry and submit a Report. He would further contend that the authority concerned is not competent to conclude the enquiry exparte without taking note of the reason assigned by the Delinquent Officer that he was pre-occupied with Review meetings in six Districts. He would also point out that the Delinquent Officer had sought change of date of the enquiry, which request was not looked into by the competent authority. 11. We have heard the learned counsel for the parties and perused the material documents available on record. 12. According to the respondent/Delinquent Officer, he was initially appointed as Typist through TNPSC; joined duty on 24.11.1966 in the office of the Directorate of Harijan Welfare Department; subsequently gained several promotions and on 23.12.1999, he was promoted as District Backward Classes and Minority Welfare Officer and posted at Madurai. While so, he was issued with a Charge Memo vide G.O.(2D) No.36 Backward Classes, Most Backward Classes and Minorities Welfare (BCI) Department, dated 22.12.2006 containing three charges, which are as follows: Charge No.1: Thiru. P.Radhakrishnan, Special Officer (Planning) Officer of the Commissioner and Director of Backward Classes and Minorities Welfare Department while working as District Backward Classes and Minorities Welfare Officer, Madurai District in June 2000, has promoted 3 Assistant Cooks on consolidated pay as Cooks/Watchwomen in the time scale of pay from 01.07.2000 which is against the instructions issued by the Commissioner and Director of Backward Classes and Minorities Welfare in his Confidential Circular No.B1/8384/99, dated 06.03.2000 and D.O. Letter No.8384/99, dated 19.06.2000, according to which no one should be appointed as Cook/Watchman/Watchman in the time scale of pay. Violation of the above instructions has caused loss to Government. Charge No.2: Thiru. P.Radhakrishnan, while working as District Backward Classes and Minorities Welfare Officer, Madurai District during June and July 2000, has transferred 19 employees violating the orders of the Government banning general transfer of Government Servants for the year 2000 issued in Government Letter No.8258/S/2000-1, Personnel and Administrative Reforms Department, dated 10.03.2000. Charge No.2: Thiru. P.Radhakrishnan, while working as District Backward Classes and Minorities Welfare Officer, Madurai District during June and July 2000, has transferred 19 employees violating the orders of the Government banning general transfer of Government Servants for the year 2000 issued in Government Letter No.8258/S/2000-1, Personnel and Administrative Reforms Department, dated 10.03.2000. Charge No.3: Thiru.P.Radhakrishnan by violating the said orders of the Government and Director of Backward Classes and Minorities Welfare, has violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973. 13. To the above charges, the respondent/Delinquent Officer submitted his explanation to the following effect. Explanation to Charge No.1: In G.O.Ms.No.67, BC & MBC Department, dated 02.07.1998, the Government has issued orders to bring those Cooks on consolidated pay of Rs.500/-p.m. to regular Time Scale of Pay of Rs.2550-55-3200 and had enhanced the consolidated pay of the Cook-Helpers from Rs.100/-p.m. to Rs.500/- p.m. with effect from 01.07.1998. In pursuance of the said Government Order, Tmt. D.Sumathi, Cook, on consolidated pay of Rs.500/-p.m., who had already put in 5 years of service and senior-most person in the seniority list was promoted and posted as Cook of regular Time Scale of Pay in the existing vacancy as per seniority in Proceedings No.4249/BC2/2000, dated 30.06.2000, which was not a fresh recruitment and no loss was caused to the Government. Owing to the welfare of the boarders, Tmt.V.Raniammal, Cook on Time Scale of Pay was posted as Servant-maid which also carries the same scale of pay as that of cook by transfer of cadre without any loss of money to Government in the vacancy arose due to superannuation retirement of one Tmt.D.Pandiammal on 30.06.2000, which was not an appointment made through Employment Exchange, but appointment made by transfer of cadre without any loss to Government. Thiru.M.Samipillai, Cook on time scale of Pay was posted as Servant-cum-Watchman in the existing vacancy which also carried the same Scale of Pay and the posting was made without any additional expenditure to Government by way of transfer of cadre. He has stated that he did not make any new appointments, but all the aforesaid three appointments were made only by transfer of cadre without violation of Government Rules and without any loss to Government. He has stated that he did not make any new appointments, but all the aforesaid three appointments were made only by transfer of cadre without violation of Government Rules and without any loss to Government. Explanation to Charge No.2: It has been stated in the Government Letter dated 10.03.2000, there was a ban on transfers pertaining to mutual transfer cases and request transfers and those seeking transfers should give a declaration that they would not claim Transfer Travelling Allowance. Hence, the Transfer Order effect to Tvl.Mohan, A.Devaraj and M.Balamurugan are request transfers and mutual transfers only. In the said Transfer Orders, it was mentioned that the persons on mutual transfers and on request transfers are not entitled to TTA, which proves that there was no violation of Government Rules. Further, all the transfers made in Proceedings No.39229/2000/BC, dated 01.06.2000, 01.07.2000, 03.07.2000 were either mutual transfers or transfers as per the request of the Staff Association. The reasons for transfers were stated in the said orders itself and hence all the orders were passed in accordance to the Government Rules. Explanation to Charge No.3: I wish to state that I have never violated the Government instructions at any point of time, but worked in accordance to the Government Rules. In the post of appointing authority, I had always acted in accordance to the Government instructions. 14. It is seen that as per the Memo of the Commissioner for Disciplinary Authority, Salem vide No.119/2003/AA2, dated 10.03.2004, an enquiry was fixed on 16.03.2004 and 17.03.2004 and the respondent/Delinquent Officer, on receiving the same, requested for change of date, as he was held up in Review Meeting from 15.03.2004 to 18.03.2004 in six Districts, viz. Trichy, Perambalur, Karur, Thanjavur, Nagai and Thiruvarur as per the proceedings of CCA and Most Backward Classes Welfare Department vide No.E1.S.Mu.Ve.273/04, dated 12.03.2004 and also for production of File No.4249/2000/Pi Na.2, dated 30.06.2000. Whereas, the Disciplinary Authority, without giving an opportunity to the Delinquent Officer for the oral hearing on some other day, decided exparte and submitted his report on 19.06.2004. 15. Based on the Enquiry Report of the Commissioner of Disciplinary Proceedings, Salem, dated 19.06.2004, further explanation was called for by the Secretary to Government, the 1st appellant herein vide Government Letter dated 14.09.2004, to which, the Delinquent Officer submitted his explanation on 12.10.2004 categorically stating his inability to attend the enquiry and requested for further enquiry. 15. Based on the Enquiry Report of the Commissioner of Disciplinary Proceedings, Salem, dated 19.06.2004, further explanation was called for by the Secretary to Government, the 1st appellant herein vide Government Letter dated 14.09.2004, to which, the Delinquent Officer submitted his explanation on 12.10.2004 categorically stating his inability to attend the enquiry and requested for further enquiry. Inspite of his explanation and request on 23.11.2005, the 1st appellant had issued a Show Cause Notice calling upon the Delinquent Officer to submit his explanation within 15 days and why a recovery cannot be imposed on him for a sum of Rs.3,13,940/-and Rs.100/- to be cut from his pension for 12 months. The respondent/Delinquent Officer submitted an explanation to the same on 28.11.2005. Despite the same, the 1st appellant imposed the punishment of recovery of Rs.100/- to be cut from his pension and a sum of Rs.3,13,940/-, out of which Rs.2,39,069/- to be recovered from the DCRG and the balance amount of Rs.74,871/-to be recovered from his pension at the rate of Rs.921/- as first instalment and Rs.1,450/-for 51 months. Seeking to quash the same, the Delinquent Officer filed W.P.No.7059 of 2007. Aggrieved by the allowing of the said Writ Petition, the respondents therein have come before this Court with the present appeal. 16. Learned Single Judge, after considering every aspect, has come to the conclusion as to the settled legal position that when the statute requires a particular thing to be done in a particular manner, the same has to be done in that manner and not otherwise. If really, the disciplinary authority decided to continue the disciplinary proceedings even after the date of retirement of the delinquent officer, the only option available to the disciplinary authority is to invoke the mandatory provision of Rule 56(i)(c) of the Fundamental Rules. The learned Judge further held that when once, the charges framed against the Delinquent Officer were categorically denied by him in the explanation, it is incumbent on the part of the disciplinary authority to conduct appropriate and fair enquiry. The learned Judge further held that when once, the charges framed against the Delinquent Officer were categorically denied by him in the explanation, it is incumbent on the part of the disciplinary authority to conduct appropriate and fair enquiry. He further observed that when the Commissioner for Disciplinary Proceedings, Salem to whom the matter was referred, has called for the Delinquent Officer to participate in the enquiry on 16.03.2004 and 17.03.2004, it was not as if the Delinquent Officer has disobeyed the said direction of the Commissioner for Disciplinary Proceedings, Salem, but he has only requested by informing him that he was to attend review meeting from 15.03.2004 to 18.03.2004 in six districts as per the proceedings of the Commissioner, dated 12.03.2004 which is relating to his duty and in fairness, the Commissioner for Disciplinary Proceedings, Salem should have considered the genuine request of the Delinquent Officer and given him an opportunity to participate in the enquiry especially when the charges were framed under Rule 17 (b). On the other hand, the Commissioner, Disciplinary Authority, Salem has simply closed his eyes and treated as if he is entitled to conduct enquiry exparte and submit his report. Therefore, on the ground of patent violation of principles of natural justice and for want of jurisdiction on the part of the respondents in continuing the disciplinary proceedings under Pension Rules, the learned Single Judge set aside the impugned order of the first respondent therein. 17. In the light of the above, what is required is that the disciplinary authority before contemplating proceedings on the Delinquent Officer on the charges framed against him, ought to have looked into his explanation submitted on 19.10.2001. Only thereafter, the disciplinary authority has to follow the procedures contemplated under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules. Only thereafter, the disciplinary authority has to follow the procedures contemplated under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules. For better appreciation of the case, Rule 17(b) is extracted hereunder: "Rule 17(b)(i) Procedure to be followed while it is proposed to impose Major penalties: (b)(i) Without prejudice to the provisions of the Public Servants' Inquiries Act, 1850 (Central Act XXXVII of 1850), in every case where it is proposed to impose on a member of a service or on a person holding a Civil Post under the State any of the penalties specified in items (iv), (vi) and (viii) in Rule the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegation, on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time to put in a return statement of his defence and to state whether he desires an oral enquiry or to be heard in person or both. An oral inquiry shall be held if such an enquiry is desired by the person charged or is directed by the authority concerned. Even if a person charged has waived an oral enquiry, such inquiry shall be held by the authority concerned in respect of charges which are not admitted by the person charged and authority concerned in respect of charges which are not admitted by the person charged and which can be proved only through the evidence of witnesses. At that inquiry, oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged be entitled to cross-examine the witness to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. Whether or not the person charged desired for an oral inquiry he shall be heard in person at any stage if he so desires before passing of final order. Whether or not the person charged desired for an oral inquiry he shall be heard in person at any stage if he so desires before passing of final order. A report of the inquiry or personal hearing (as the case may be) shall be prepared by the authority holding the inquiry or personal hearing whether or not such authority is competent to impose the penalty. Such report shall contain a sufficient record of the evidence, if any and a statement of the findings and the grounds thereof. Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction thereon, and is succeeded by another inquiring authority which has, and which exercise such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor; or partly recorded by its predecessor and partly recorded by itself. Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witness whose evidence has already been recorded is necessary in the interest of justice, it may recall examine, cross-examine and re-examine any such witnesses as hereinbefore, provided. Provided further that the Government servant may take the assistance of any retired Government Servant to present the case on his behalf but may not engage a legal practitioner for the purpose, unless the inquiring authority is a legal practitioner or the inquiring authority, having regard to the circumstances of the case, so permits. " 18. A reading of the above would clearly show the procedures contemplated under the Act. Even in the absence of the delinquent Officer, the Commissioner of Tribunal for Disciplinary Proceedings, Salem, who has been entrusted with the conduct of the proceedings, has to act in the manner as contemplated either under the relevant Rules or under the procedures contemplated for conducting the departmental proceedings, thereby arriving at a conclusion of the enquiry on verification of records. But, in the case on hand, the disciplinary authority has exparte concluded the enquiry without giving any consideration to the oral and documentary evidence available on record. Therefore, it is crystal clear that the disciplinary authority has erred by not following the procedures contemplated under the Act and hence, the matter needs to be re-examined. 19. But, in the case on hand, the disciplinary authority has exparte concluded the enquiry without giving any consideration to the oral and documentary evidence available on record. Therefore, it is crystal clear that the disciplinary authority has erred by not following the procedures contemplated under the Act and hence, the matter needs to be re-examined. 19. Normally, when a Court feels that an opportunity of hearing has not been given to the delinquent, the matter will be remanded back for fresh enquiry. As to the conclusion of the learned Single Judge in this case in setting aside the impugned proceedings in entirety, it is seen that the procedure which has to be followed in the normal circumstances i.e. remanding the matter to the disciplinary authority for conducting fresh enquiry, has not been done in this case. 20. In the above circumstances, it would be worth referring to the judgment of the Hon'ble Supreme Court reported in 1993 (4) SCC 727 in the case Managing Director, ECIL, Hyderabad vs. B. Karunakar, wherein, it is held as follows: “7. ... Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/ Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law. ” 21. In view of the above ruling and taking note of the fact that the Disciplinary authority has failed to follow the principle audi alteram partem i.e. without hearing the other side, this Court feels it necessary to remand the matter to the Disciplinary Authority for fresh enquiry. 22. That will also be the correct position in law. ” 21. In view of the above ruling and taking note of the fact that the Disciplinary authority has failed to follow the principle audi alteram partem i.e. without hearing the other side, this Court feels it necessary to remand the matter to the Disciplinary Authority for fresh enquiry. 22. Accordingly, the impugned order dated 22.12.2006 passed by the 1st respondent is set aside and the matter is remanded back to the Commissioner for Disciplinary Proceedings, Salem for fresh consideration and he is directed to conduct fresh enquiry in the case of the Delinquent Officer in accordance with law after affording an opportunity of hearing to the parties concerned. This exercise shall be completed within a period of three (3) months from the date of receipt of a copy of this judgment. The Writ Appeal is disposed of with the above direction. No costs. Consequently, connected M.P.No.1 of 2011 is closed.