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2015 DIGILAW 2697 (MAD)

A. S. Radhakrishnan v. State of Tamil Nadu

2015-07-31

S.VAIDYANATHANZ

body2015
ORDER : S. Vaidyanathan, J. 1. The prayer in the Writ Petition in W.P.(MD) No. 8714/2015 is to quash the order of the 1st respondent dated 29.04.2015 issued vide G.O.(ID) No. 131 (School Education-Pa. Ka. 1(2) Department), vide which, the punishment imposed against the petitioner, namely, stoppage of increment for two years with cumulative effect has been confirmed. In the Writ Petition in W.P.(MD) No. 8928/2015, the petitioner seeks a direction to the 2nd respondent Director to give promotion to the petitioner forthwith as Joint Director on the basis of the Seniority List announced by him as on 01.01.2015 with effect from the date on a par with that of his juniors with all attendant benefits. 2. Writ Petition in W.P.(MD) No. 8948/2015 has been filed to quash the order of the 1st respondent dated 02.06.2015 issued in G.O.Ms. No. 137 (School Education - Pa. Ka. 1(1)), in and by which, the petitioner has been transferred to some other place on administrative ground. 3. The petitioner has filed a Contempt Petition in Cont. P. (MD) No. 731 of 2015 seeking to punish the respondents for his deliberate and willful disobedience of the order of this Court dated 04.06.2015 in M.P.(MD) No. 2 of 2015 in W.P.(MD) No. 8948 of 2015. 4. Since the issue in question is one and the same, all these petitions are taken up together for final disposal. For the sake of brevity, the facts are being taken from W.P.(MD) No. 8714 of 2015. 5. The facts leading to filing of these petitions are as follows: (i) The petitioner has submitted that he was initially appointed as District Educational Officer through direct recruitment on 11.11.2002 and posted at Trichy District. Subsequently, he was posted as Inspector of Matriculation Schools, Chennai with effect from February, 2004 and was thereafter, promoted as Chief Educational Officer (CEO) and posted at Namakkal District on 02.03.2005. He has also submitted that he is in receipt of the following awards for the good works in the field of Education. i. Kamaraj Award at Thiruvarur (2009) ii. The Best Educationalist Award iii. The Enlightenment Award iv. The Ceaseless Crusade Award v. The Golden Heart Award vi. Manavar Thilagam Award vii. Valarkalvi Vithagar viii. Zenith of the Zeal award ix. Valum Kamaraj Award x. Best Achievers award xi. Legend of Education xii. Charismatic Enthusiast xiii. Beacon of Education xiv. Charioteer of Education xv. The Best Educationalist Award iii. The Enlightenment Award iv. The Ceaseless Crusade Award v. The Golden Heart Award vi. Manavar Thilagam Award vii. Valarkalvi Vithagar viii. Zenith of the Zeal award ix. Valum Kamaraj Award x. Best Achievers award xi. Legend of Education xii. Charismatic Enthusiast xiii. Beacon of Education xiv. Charioteer of Education xv. The Outstanding Adventure of schools xvi. Glory of the Galaxy xvii. Educational wizard xviii. Ulaipu Chemmal xix. Manavarkalin vidivelli xx. Vocational Excellence Award xxi. Kalvi Kalavithagar xxii. Gnana Sirpy xxiii. Educational Excellence xxiv. Chief Architect of extraordinary academic performance xxv. The Ballistic Blockbuster (ii) The petitioner has further submitted that when he was serving as CEO at Namakkal, the Director of School Education issued a Charge Memo dated 09.05.2006, leveling eight charges against him under Rule 17(b) of T.N. Civil Services (Discipline and Appeal) Rules, 1973 and explanation was sought for within a period of 30 days, pursuant to which, he had submitted his detailed explanation dated 20.05.2006, refuting each and every charge. However, the 2nd respondent Director appointed one V. Raja Rajeshwari, the then Joint Director of School Education (Secondary Education) as the Enquiry Officer to conduct an enquiry into the matter. The Enquiry Officer, after conducting enquiry, has reportedly found that the charges were not proved and submitted a report to that effect. However the report was not furnished to him and no further orders were passed by the Director. (iii) The submission of the petitioner is that in the interregnum period, he was transferred to other Districts and finally transferred to Kanyakumari District as CEO with effect from 08.12.2011. He has stated that after a period of about 7 years from the date of conclusion of the aforesaid enquiry, surprisingly, the Director ordered for a fresh enquiry vide proceedings in Na. Ka. No. 122910/Aal/E2/05 dated 24.01.2012, by appointing another Enquiry Officer. He has further stated that it could seen from the previous enquiry that the witnesses produced by the Directorate of Vigilance and Anti-corruption had not been examined properly and that the Directorate of Vigilance and Anti-corruption had found the Charges Nos. 2 and 7 to be proved (Charge No. 1 was wrongly mentioned as Charge No. 2). It is his further submission that the Director appointed one Tmt. 2 and 7 to be proved (Charge No. 1 was wrongly mentioned as Charge No. 2). It is his further submission that the Director appointed one Tmt. N. Latha, Joint Director of Elementary Education, as the new Enquiry Officer, who did not furnish him copies of either the previous Enquiry Report dated 02.03.2007 or the report of the Directorate of Vigilance and Anti-corruption. (iv) It is stated by him that the Enquiry Officer conducted enquiry on 10.01.2013 and in the course of enquiry, he requested for a copy of the 1st Enquiry Report and the Report of the Directorate of Vigilance and Anti-corruption, which was not provided to him. The Enquiry Officer enquired into the Charge Nos. 1 and 7 and the Enquiry Officer, being satisfied with his explanation, concluded the enquiry. It is also stated that the Director provided him a copy of the 2nd Enquiry Report vide proceedings dated 04.06.2013 and sought his explanation within a period of one week. But, only 6 pages of the report were provided and the enclosures annexed with the report running about 40 pages were not given to him and the Report revealed that out of all the 8 charges, two charges had been found proved viz., charges 1 & 7 and he also submitted a detailed reply dated 28.06.2013 to the Director. (v) It is his next submission that insofar as the Charge No. 1 is concerned, it relates to the installation of the Air Conditioner in the CEO's office at Namakkal. It is submitted that the Air Conditioner was donated to the office of the CEO by one voluntary organization namely, the Salem Literary Society for the protection of the Computers installed therein and due entries have been made in the Stock Registers regarding the AC and the proposal had been sent to the Directorate for approval and ratification. It was installed and used only for the purpose of protecting the computers and never for his personal use, which is still in use in the office even after his departure from Namakkal. With regard to Charge No. 7, it relates to the proposal for constructing a small shrine in the campus of the CEO office at Namakkal, which was accepted at the persistent pressure of the employees and voluntary organizations. However, the work got stopped because of the resentment at some quarters and even the basement was removed immediately. With regard to Charge No. 7, it relates to the proposal for constructing a small shrine in the campus of the CEO office at Namakkal, which was accepted at the persistent pressure of the employees and voluntary organizations. However, the work got stopped because of the resentment at some quarters and even the basement was removed immediately. However, the Government issued G.O. (1D) No. 170, (School Education [Pa. Ka. 1(2)] Department) dated 16.07.2014, imposing a punishment of stoppage of increment for two years with cumulative effect and the same was communicated to him by the Director vide proceedings dated 23.07.2014. Since the said order was passed by the 1st respondent Government and no appeal remedy was available to him, he preferred a Review Petition on 30.07.2014 to the 1st respondent under Rule 20 of TN Civil Services (Discipline and Appeal) Rules, 1973, requesting to review the order of punishment, set aside the same and discharge him of the charges. However, the 1st respondent had not passed any orders thereon, which forced him again to send a reminder to the 1st respondent on 18.08.2014, requesting to consider the Review Petition dated 30.07.2014 at the earliest. (vi) It is submitted that pursuant to the inaction on the part of the respondents, he was constrained to file Writ Petition (MD) No. 14330 of 2014, seeking a direction to the 1st respondent therein to consider and pass orders on the Review Petition filed by him dated 30.07.2014, which was sent for reviewing the order of punishment imposed in G.O. (1D). No. 170 (School Education - Pa. Ka. 1(2) Department) dated 16.07.2014 under Rule 20 of the TN Civil Services (Discipline and Appeal) Rules, 1973. This Court, by an order dated 11.09.2014, directed the 1st respondent to consider and dispose of the Review Petition dated 30.07.2014 on merits and as per law within a period of four weeks from the date of receipt of copy of the order, which order was duly communicated by the petitioner to the respondents vide letter dated 25.09.2014. (vii) It is also submitted that the 1st respondent neither considered nor passed orders upon the Review Petition. (vii) It is also submitted that the 1st respondent neither considered nor passed orders upon the Review Petition. The stipulated time of four weeks expired on 23.10.2014 and since no orders were passed even after expiry of the period, he sent a Notice through his Counsel dated 15.12.2014, indicating the expiry of the time stipulated by this Court and requested to comply with the order without further delay. As the order was still not complied with, he was constrained to file Contempt Petition (MD) No. 622 of 2015 against the 1st respondent, which was listed for admission on 24.04.2015 and this Court directed the 1st respondent to comply with the order of this Court dated 11.09.2014 within a week and report the same on 30.04.2015. (viii) The petitioner has submitted that pursuant to the order in the contempt petition, the 1st respondent issued the impugned order in G.O. (ID) No. 131 (School Education - Pa. Ka. 1(2) Department) dated 29.04.2015, confirming the earlier punishment of stoppage of increment for two years with cumulative effect and the same was passed without adequate reasons and without adherence to the principles of natural justice, as no valid reasons were given by the Director for conducting afresh enquiry after a period of about 7 years after the closure of the 1st enquiry. The 1st respondent did not consider the various grounds raised by him in the Review Petition, viz., the enquiry was not conducted in a fair manner; the witnesses were never examined in his presence; the copies of the statements of witnesses were never furnished to him; he was not provided with any opportunity of cross examining the witnesses; the copy of the Enquiry Report was not provided to him in full; Neither the statement of witnesses nor the copies of the documents were furnished to him; and no opportunity of hearing was given to him before passing the order of punishment. (ix) The petitioner has assailed the impugned order on the ground that the Enquiry Report is vitiated for the reason that the alleged report of the Directorate of Vigilance and Anti-Corruption has been relied on without putting him on notice of the same and without providing him with a copy of that report. (ix) The petitioner has assailed the impugned order on the ground that the Enquiry Report is vitiated for the reason that the alleged report of the Directorate of Vigilance and Anti-Corruption has been relied on without putting him on notice of the same and without providing him with a copy of that report. It is submitted by him that in the meantime, the 2nd respondent Director, based upon the educational qualification and seniority, has now issued the Seniority List of CEOs as on 01.01.2015 for promotion to the post of Joint Directors and his name was placed in the 2nd place in the list. In view of the impugned order of punishment, he has not been promoted as Joint Director and two of his juniors, namely, Thiru. K. Selvakumar and Thiru. P. Ponnaiah (placed in 4th and 5th ranks in the Seniority List respectively) have been promoted as Joint Directors. Thus, it is stated that the impugned proceeding issued by the 1st respondent State Government vide G.O. (1D) No. 131 (School Education - Pa. Ka. 1(2) Department) dated 29.04.2015, is highly arbitrary, illegal, unconstitutional, void, against the principles of natural justice and liable to be set aside on the ground of its arbitrariness and unreasonableness. Thus, it is prayed that the impugned order is liable to be set aside. The petitioner has also filed a separate writ petition, challenging the order of his transfer dated 02.06.2015 as Secretary to the Parent to the Parent-Teacher Association. 6. The respondents have filed a counter, wherein it has been stated as under: (i) It is stated in the counter that a petition has been received that the petitioner, while working as Chief Educational Officer, Namakkal, installed Air Conditioner at his office room at Namakkal without prior permission and paid the electricity bill from the funds of Parents Teachers Association of Government Higher Secondary School, Namakkal South. Therefore, charges were framed against the petitioner under Rule 17(b) of Tamil Nadu Civil Services (D & A) Rules, 1973 vide proceedings dated 09.05.2006. The petitioner also submitted his statement of defence on 20.05.2006 and an Enquiry Officer was appointed vide proceedings of the Director of School Education in R.C. No. 122910/02/2005 dated 09.05.2006. The report of the enquiry officer submitted to the 2nd respondent was forwarded to the 1st respondent for issuing final orders in the Disciplinary Proceedings against him. The petitioner also submitted his statement of defence on 20.05.2006 and an Enquiry Officer was appointed vide proceedings of the Director of School Education in R.C. No. 122910/02/2005 dated 09.05.2006. The report of the enquiry officer submitted to the 2nd respondent was forwarded to the 1st respondent for issuing final orders in the Disciplinary Proceedings against him. (ii) It is further stated that while pursuing further action by the Government to issue final orders in the Disciplinary Proceedings initiated by the Director of School Education, it was reported by the Vigilance Commission that a detailed enquiry was taken up against the petitioner based on the similar allegation petition received in the O/o. Directorate of Vigilance and Anti Corruption and the report of the result of enquiry will be sent on completion of enquiry. It was also advised that the petitioner may be transferred to some other District and further action on the Disciplinary proceedings case may be kept in abeyance till the receipt of the final of the DVAC along with the recommendation of Vigilance Commission. It is also stated on receipt of the report, the Director of School Education was instructed to conduct afresh enquiry on the allegations, which were proved based on the report of the DVAC vide Govt. Lr. No. 11132/A2/2006-12 dated 20.06.2011. Therefore another Joint Director, Directorate of Elementary Education was appointed as enquiry officer to conduct a fresh enquiry in this case. (iii) It is also stated that the enquiry officer submitted her report on 28.11.2012 stating that the charges 2 and 7 as substantiated by the DVAC were held to be proved. Hence, the enquiry report was forwarded to the Director of DVAC for remarks vide Govt. Lr. No. 11132/A2/2006-19 dated 20.03.2013 and the remarks of the Director of Vigilance and Anti Corruption was received on 09.05.2013 for submitting his further representation. In his further representation, the petitioner reported that he has forwarded the proposal to Director of School Education for ratifying the action of accepting the Air Conditioner as gift. It is stated that the petitioner constructed a Temple in the Office Campus without prior permission, which has paved way for many agitations among the public and criticism in the media causing irreparable damage to the Department. It is stated that the petitioner constructed a Temple in the Office Campus without prior permission, which has paved way for many agitations among the public and criticism in the media causing irreparable damage to the Department. Since the charges were proved by the enquiry officer and based on the report of the Director of Vigilance and Anticorruption, the 1st respondent issued final orders imposing penalty of stoppage of increment with cumulative effect for the period of two years vide G.O. (1D) No. 170, School Education (SE1(2)) Department dated 16.07.2014 and the same was served on the petitioner by the Director of School Education in his proceedings R.C. No. 122910/A1/E2/2005 dated 23.07/2014. (iv) The stand of the respondents in the counter is that aggrieved by the said order, the petitioner submitted a review petition on 30.07.2014 to the Government and in view of the provisions of Rule 20(1) and (2) of the Tamil Nadu Civil Services (D & A) Rules, 1973, it is mandatory that the TNPSC has to be consulted before passing final orders on the said review petition and 30 days' time limit has been prescribed for obtaining the views of the TNPSC and another 30 days' time to consult other departments. Since the views of the TNPSC was awaited, the 1st respondent was not able to issue final orders on the Review Petition at the point of time. All appeals and review petitions pertaining to the Disciplinary cases should be disposed of within six months from the date of receipt of appeal/review petition from the forwarding authority. Without waiting till the end of the six months' time limit to pass orders on the review petition, the petitioner had filed a writ petition in W.P. No. 14330/2014 for a direction to consider the said petition, which was disposed of by this Court on 11.09.2014 granting four weeks' time to dispose of the review petition. In the meantime, the petitioner filed a Contempt Petition in Cont. P.(MD) No. 622 of 2015, which was closed by this Court pursuant to the orders passed by the 1st respondent dated 29.04.2015, which is impugned in this writ petition, confirming the order of punishment after getting views from the TNPSC on 28.04.2015. In the meantime, the petitioner filed a Contempt Petition in Cont. P.(MD) No. 622 of 2015, which was closed by this Court pursuant to the orders passed by the 1st respondent dated 29.04.2015, which is impugned in this writ petition, confirming the order of punishment after getting views from the TNPSC on 28.04.2015. (v) It is denied with regard to the submission of the petitioner that the enquiry was not conducted in a fair and just manner, as after due communication of the enquiry report and getting additional explanation from the petitioner, the 1st respondent had passed orders in the review petition. With regard to the release of seniority list, it is submitted that due to pendency of several litigations regarding the fixation of seniority among 'A' sing and 'B' Wing teachers of the Board schools and Government schools, only temporary panel for appointment to the post of Joint Director was drawn for the year 2014-2015 and the same was also approved by the Government on 20.01.2015. Hence, temporary promotion was given under General Rule 39(a)(1) of Tamil Nadu State and Subordinate Service Rules as per which three Chief Educational Officers were promoted to the post of Joint Director vide G.O.(Ms) No. 90 School Education SE1(1) Department dated 29.04.2015, which is in consonance with the amended Rule 4(a) of the General Rules for the Tamil Nadu State and Subordinate Services, which stipulates that pendency of charges framed under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules against a member of a service shall be a bar for inclusion of his name in the approved list and therefore, the name of the petitioner was not considered for inclusion in the panel for the post of Joint Directors for the year 2014-2015. Thus, it prayed by the respondents that all the petitions are liable to be dismissed. 7. Learned counsel for the petitioner has submitted that no opportunity of personal hearing was afforded to the delinquent before passing the impugned order of punishment, which is in utter violation of the principles of natural justice and personal hearing must have been given to the petitioner, especially when the ultimate decision turned out to be contrary to the findings recorded in the original Enquiry Report. Above all none of the grounds raised by the delinquent in his Review Petition has been considered by the Reviewing authority. 8. Above all none of the grounds raised by the delinquent in his Review Petition has been considered by the Reviewing authority. 8. Learned counsel for the petitioner has relied on the following judgments in support of his contention: (i) State of Uttaranchal and others vs. Kharak Singh, reported in 2009-2-L.W. 241 : (2008) 8 SCC 236 ; "20. A reading of the enquiry report also shows that the respondent herein was not furnished with the required documents. The department's witnesses were not examined in his presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit before the High Court in the writ proceedings, those averments were specifically controverted in the reply affidavit filed by the department. Mere denial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the enquiry officer to the disciplinary authority, the respondent herein was furnished with the copy of the said report along with all the relied upon documents. When all these infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not pointed the relevant materials from the records of the enquiry officer and disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent. (ii) Union of India and another vs. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28 ; "13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467 , Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001 (10) SCC 639 , State of U.P. vs. Brahm Dart Sharma and another AIR 1987 SC 943 etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance." (iii) State of A.P. vs. N. Radhakishan, reported in (1998) 4 SCC 154 ; "19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case, the essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and has not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred, if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred, if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration. 20. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularizing the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any inquiry officer even assuming that action was validly being initiated under 1991 Rules. There is no explanation whatsoever for delay in concluding the inquiry proceedings all these years. The case depended on records of the Department only and Director General, Anti Corruption bureau had pointed out that no witnesses ad been examined before he gave his report. The Inquiry Officers, who had been appointed on after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorized and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the state as to why delay occurred. In fact there was hardly any explanation worth consideration. It is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the state as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995 and directing the state to promote the respondent as per recommendation of the DPC ignoring memos dated October 27, 1995 and June 1, 1996, the Tribunal rightly did not quash these two later memos." (iv) Mohd. Quaramuddin (Dead) By Lrs. vs. State of U.P., reported in (1994) 5 SCC 118 ; "3. On merits the tribunal came to the conclusion that the principle of natural justice had been violated in that the delinquent was not supplied a copy of the Vigilance Commission Report although it formed part of the record of the enquiry and material which the disciplinary authority had taken into consideration. The tribunal observed that where such a material which the disciplinary authority relies on is not disclosed to the delinquent it must be held that he was denied the opportunity of being heard, meaning thereby that the audi alteram partem rule had been violated. In the present case the tribunal found that the directions to this effect found in the Government Memorandum No. 821/Services-C/69-8 dated 30-3-1971 had not been adhered to. Had the tribunal not come to the conclusion that the suit was barred by limitation, it would have allowed the appeal preferred by the delinquent." (v) K. Vijayalakshmi vs. Union of India and others, reported in (1998) 4 SCC 37 ; "6. We are of the view that without going into the factual aspect of the case, the order of the Tribunal as well as the order of the General Manager confirmed by the appellate authority are liable to be set aside on the sole ground that the document based on which the conclusion came to be reached having not been supplied to the appellant, the decision cannot be sustained. The respondent ought to have given to the appellant a copy of the opinion of the Forensic Department based on which the impugned order came to be passed." (vi) Punjab National Bank and others vs. Kunj Behari Misra, reported in (1998) 7 SCC 84 ; "18. The respondent ought to have given to the appellant a copy of the opinion of the Forensic Department based on which the impugned order came to be passed." (vi) Punjab National Bank and others vs. Kunj Behari Misra, reported in (1998) 7 SCC 84 ; "18. Under Regulation - 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. 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 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 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 punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case (supra). 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. (vii) K.R. Deb vs. The Collector of Central Excise, Shillong, reported in 1971 (2) SCC 102 ; "10. A number of points have been raised before us but we need only mention one point, viz., that the Collector had no authority to appoint Shri K.P. Patnaik to inquire into the charge after the Inquiry Officers had reported in his favour, it was urged before us that such an inquiry is not contemplated by the Central Civil' .1mO Services (Classification, Control and Appeal) Rules, 1957. It was contended that rule 15 of the 'Classification and Control Rules did not contemplate successive inquiries, and at any rate, even if it contemplated, successive inquiries there was no provision for setting aside earlier inquiries without 'giving any reason whatsoever. It was further contended that the order dated February 13, 1962 was mala fide. 11. Rule 15(1) of the Classification and Control Rules reads as follows: "(1) Without prejudice to the, provisions of; the Public Servants (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in clauses (iv) to (vii) of rule 13 shall be passed except after an inquiry, held, as far as may be, in the manner hereinafter provided." Clause (2) of rule 15 provides for framing of charges and communication in writing to the 'government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under cl. (3) the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under cl. (3) the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such, of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefore. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has bad an opportunity of defending himself against them. Under cl. (9) "the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Clause (10) provides for issue of show-cause notice. 12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of, the Inquiring Officer or Officers does not appeal to the disciplinary, Authority-. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9. 13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. 14. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. 14. Before the Judicial commissioner the point was put slightly differently and, it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise, that the Collector was determined to get some Inquiry Officer to report against the appellant. 15. In the result we hold that no proper inquiry has been conducted in the case and, therefore, there has been a breach of Art. 311(2) of the Constitution. The appeal is accordingly allowed and the order dated June 4, 1962 quashed, and it is declared that the appellant should be treated as still continuing in service. He should be paid his pay and allowances for the period he has been out of office. The appellant will have his costs here and in the Court of the Judicial Commissioner. Fees shall be payable by the appellant to his advocate and be allowed on taxation." 9. Learned Special Government Pleader has vehemently contended that the petitioner's statement that he was not given opportunity to examine the witness, is not correct, because the petitioner and nine other witnesses were present on the day of enquiry, viz., 11.01.2013 and cross interrogation was done by the enquiry officer with all the witnesses and the petitioner had also given his explanation on the very same day to the enquiry officer for the charges framed against him without raising any objection. He has further contended that based on the amended Rule 4 of the General Rules for the Tamil Nadu State and Subordinate Services, his name was rightly not included in the panel for promotion to the post of Joint Directors and therefore, the act of the respondents cannot be faulted with. 10. He has further contended that based on the amended Rule 4 of the General Rules for the Tamil Nadu State and Subordinate Services, his name was rightly not included in the panel for promotion to the post of Joint Directors and therefore, the act of the respondents cannot be faulted with. 10. Learned Special Government Pleader has vehemently contended that the petitioner's statement that he was not given opportunity to examine the witness, is not correct, because the petitioner and nine other witnesses were present on the day of enquiry, viz., 11.01.2013 and cross interrogation was done by the enquiry officer with all the witnesses and the petitioner had also given his explanation on the very same day to the enquiry officer for the charges framed against him without raising any objection. He has further contended that based on the amended Rule 4 of the General Rules for the Tamil Nadu State and Subordinate Services, his name was rightly not included in the panel for promotion to the post of Joint Directors and therefore, the act of the respondents cannot be faulted with. 11. Learned Special Government Pleader has quoted a judgment of the Hon'ble Supreme Court in the case of Managing Director and others vs. B. Karunakar and others, reported in (1993) 4 SCC 727 in the midst of his argument, wherein, it has been held as under: "24. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offend Arts. 14 and 21. It is well settled law that principle of natural justice are integral part of Art.14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post mortem certificate with purifying odor. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Arts. 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Govt./management that the report is not evidence adduced during such enquiry envisaged under proviso to Art. 311(2) is also devoid of substance. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Arts. 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Govt./management that the report is not evidence adduced during such enquiry envisaged under proviso to Art. 311(2) is also devoid of substance. It is settled law that Evidence Act has no application to the enquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with Indian Evidence Act, though the essential principle of fair play envisaged in the Evidence Act are applicable. What was meant by 'evidence, in the proviso to Art. 311(2) is the totality of the material collected during the enquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed, by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both." 12. Heard the learned counsel on either side and given a thoughtful consideration to the submissions, by duly perusing the materials available on record, including the judgments cited by them. 13. On a circumspect consideration of the facts and circumstances of the case, it becomes unraveled that the petitioner was served with a Charge Memo dated 09.05.2006 under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1973, containing eight charges. After explanation, an Enquiry Officer, by name V. Raja Rajeshwari, the then Joint Director of School Education (Secondary Education) was appointed to conduct an enquiry, who in her report, held all the eight charges to be not proved and she submitted her report on 23.03.2007. According to the petitioner, the copy of the said report has not been furnished to him. It is also seen that after receipt of the report, the petitioner was issued with another set of charges, identical to the one issued on 09.05.2006, but however, out of 7 charges, only Charge Nos. 1 and 7 of the previous charges were taken as the charges in the fresh enquiry. To enquire into those two charges, one Tmt. It is also seen that after receipt of the report, the petitioner was issued with another set of charges, identical to the one issued on 09.05.2006, but however, out of 7 charges, only Charge Nos. 1 and 7 of the previous charges were taken as the charges in the fresh enquiry. To enquire into those two charges, one Tmt. N. Latha, Joint Director of Elementary Education was appointed as the new Enquiry Officer vide proceedings of the Director of School Education in Rc. No. 122910/C12/2005 dated 24.01.2012, who submitted her report stating that Charges 2 and 7 were proved. 14. It appears that the petitioner also participated in the enquiry and gave a detailed explanation. However, the Government, vide its order dated 16.07.2014, issued in G.O. (1D) No. 170, (School Education [Pa. Ka. 1(2)] Department) imposed a punishment of stoppage of increment for two years with cumulative effect and the same was communicated to the petitioner by the Director vide proceedings dated 23.07.2014. The petitioner submitted that in the said punishment order, the report of the previous Enquiry Officer V. Raja Rajeshwari has been referred to, wherein it has been stated eight charges have not been proved. In the subsequent enquiry conducted by Tmt. N. Latha, it was held that Charge Nos. 2 and 7 have been proved instead of Charge Nos. 1 and 7. 15. According to the petitioner, the second charge sheet on the same set of charges, namely, 1 & 7 are bad and even assuming for the sake of argument that it is taken to be correct, the new Enquiry Officer has no jurisdiction to enquire into the eight charges, which were already held to be not proved by her predecessor, without disagreeing with the findings of the previous Enquiry Officer. I find force in the said contention for the reason that if the contention of the respondents is accepted, it would amount to allowing the department to conduct as many as enquiry on the same set of charges till such time they get a favourable report. 16. Learned Special Government Pleader has controverted that it is only further enquiry and not a fresh enquiry, as the petitioner has been issued with Charge Nos. 1 and 7 alone after excluding some of the charges from the earlier charges. 16. Learned Special Government Pleader has controverted that it is only further enquiry and not a fresh enquiry, as the petitioner has been issued with Charge Nos. 1 and 7 alone after excluding some of the charges from the earlier charges. It is not known as to why enquiry officer was not appointed to enquire into the balance charges, since the then Enquiry Officer found all the charges to be not proved. Therefore, it will definitely amount to fresh enquiry after a period of seven years and moreover, there was no opportunity given to the petitioner for disagreeing with the findings of the Enquiry Officer. 17. The Hon'ble Supreme Court in the case of K.R. Deb vs. The Collector of Central Excise, Shillong, reported in 1971 (2) SCC 102 , had already considered the maintainability of the writ petition and scope of the second enquiry, holding that there is no provision in Rule 15 of the Classification and Control Rules to completely set aside the previous enquiries on the ground that the report of the Enquiry Officer or Officers does not appeal to the Disciplinary Authority. 18. In this case, admittedly, the Government, while issuing the order of punishment, have referred to the report dated 23.03.2007 of the Enquiry Officer, by name, V. Raja Rajeshwari, which has not been furnished to the petitioner. Even though the respondents disputed the fact that it is not a fresh enquiry, but only continuation of the previous enquiry, once the charges are held to be not proved and the petitioner was exonerated from the charges, the second enquiry proceedings on the same set of charges are illegal, in view of the decision extracted supra. 19. I am not in agreement with the next contention of the respondents that since the petitioner did not ask for a copy of the documents, the same was not extended to him. The said contention may be accepted in case the petitioner demanded certain documents from the respondents to prove his case. But, in the case on hand, those documents as required by the petitioner were relied upon by the respondents in the order of punishment and therefore, it is mandatory on them to provide a copy of the same to the petitioner to defend his case. But, in the case on hand, those documents as required by the petitioner were relied upon by the respondents in the order of punishment and therefore, it is mandatory on them to provide a copy of the same to the petitioner to defend his case. The petitioner has stated that he had already submitted a detailed reply stating that the Air Conditioner donated by Salem Literacy Society was not used for his personal benefit. In any event, since in the first enquiry, all the eight charges have been held to be not proved, I do not want to go into the same in depth. In respect of the contention of the respondents that it is only further enquiry, even assuming that it is only further enquiry, the respondents ought not to have opened it after a delay of about 7 years, when the promotion is due to the petitioner. 20. The respondents would submit that in case this Court disagrees with the contention of the respondents, the matter may be remitted back to the Reviewing Authority for fresh consideration in consonance with the judgment of the Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad and others vs. B. Karunakar and others, reported in (1993) 4 SCC 727 , wherein it has been held that a delinquent employee is entitled to a copy of enquiry report of the enquiry officer before the disciplinary authority takes decision on the question of guilt of the delinquent and non furnishing of the enquiry report would render the final order void and in case any defect is pointed out, the matter could be remanded to the authority, who can proceed further. In Kashinath Dikshita vs. Union of India and others, reported in AIR 1986 SC 2118 , the Hon'ble Supreme Court was pleased to hold that it is unjust and unfair to deny the Government servant copies of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. In this case, the respondents ought to have furnished a copy of the enquiry report to the petitioner, even if he has not asked for it also. 21. In this case, the respondents ought to have furnished a copy of the enquiry report to the petitioner, even if he has not asked for it also. 21. However, the judgment relied on by the respondents (supra) will not be helpful to them, because while imposing punishment in the second charge sheet, in which the very same set of two charges out of 7 in the first charge sheet were enquired into, the report of the then enquiry officer is referred to in the order, which admittedly ended in favour of the petitioner. Moreover, remittal would create further complications in view of the fact that the Reviewing Authority has no other option, but to necessarily pass orders based on the materials available before him, which were collected at the time of enquiry. In doing so, next question would arise as to whether all the charges have to be dealt with together or not and therefore, no purpose would be served in remitting the case to the Reviewing Authority. Therefore, finding force in the contention raised by the petitioner, the impugned order is held to be bad and is accordingly, set aside. 22. With regard to the prayer sought in W.P.(MD) No. 8948/2015 in respect of his transfer, it is seen that the petitioner alone has not been transferred and the transfer order has been served to other persons also. Admittedly, the petitioner is working in a sensitive and higher post, which is transferable one and the post in which he has been transferred is equivalent to the post, which he had already held and it is only his mind set that he is going to work in a lower cadre. Therefore, I do not find any reason to interfere with the transfer order especially in absence of any mala fide intention in transferring the petitioner. 23. The petitioner has also filed a Contempt Petition in Cont. P.(MD) No. 731 of 2015 for punishing the respondents for their deliberate and willful disobedience of the order of this Court dated 04.06.2015. 24. Pursuant to the orders of this Court, the Tahsildar has filed an affidavit, wherein it has been stated as under: "01. I submit that as instructed by the District Collector, Kanyakumari District a team of Revenue Officials headed by me, (i.e.) Tasildhar, Agasteeswaram Taluk, visited the Office of the Chief Educational Officer, by 2.00 P.M. on 5.06.2015. 02. 24. Pursuant to the orders of this Court, the Tahsildar has filed an affidavit, wherein it has been stated as under: "01. I submit that as instructed by the District Collector, Kanyakumari District a team of Revenue Officials headed by me, (i.e.) Tasildhar, Agasteeswaram Taluk, visited the Office of the Chief Educational Officer, by 2.00 P.M. on 5.06.2015. 02. I submit that when I visited the Office of the Chief Educational Officer, Nagercoil the Officer's Room was locked and I came to know that the keys were taken by the Ex-Chief Educational Officer, Thiru. A.S. Radhakrishnan. 03. I submit that I, with my team removed the locks and Thiru. V. Jeyakumar, Chief Educational Officer continued with his office work in the Office of the Chief Educational Officer, Nagercoil, thereafter. 04. I am swearing this affidavit to bring to the knowledge of this Hon'ble Court, the fact that I was instructed by District Collector, Kanyakumari to visit the office of CEO, Kanyakumari and remove the lock put up therein, as it was a public office and that I visited the same and removed lock by 2.00 P.M. on 05.06.2015." 25. A glance at the averments in the affidavit of the Tahsildar and photographs produced before this Court would amply prove that the petitioner had already handed over the charge prior to the passing of the interim order and therefore, he cannot take U-turn now to contend that he has not been relieved from duty and the interim order of status quo has not been complied with. But for this incident, the Court would have interfered with the charge issued against him pursuant to the misconduct of the petitioner in locking the public office. However, it is made clear that enquiry shall be commenced on that charge on day today basis and that the same shall not be adjourned beyond two days at any point of time and final orders to be passed as expeditiously as possible. 26. It is pointed out by the petitioner across the bar that Mrs. D. Sabeetha, contemnor has the practice of violating several orders of this Court and she has been called up by this Court in several contempt proceedings. It is to be noted that each and every contempt proceeding has got to be analyzed separately. 26. It is pointed out by the petitioner across the bar that Mrs. D. Sabeetha, contemnor has the practice of violating several orders of this Court and she has been called up by this Court in several contempt proceedings. It is to be noted that each and every contempt proceeding has got to be analyzed separately. Punishment given in one contempt proceeding cannot be taken as a precedent to punish the same person in another contempt petition. In the result, the following orders are passed: (i) Writ Petition in W.P.(MD) No. 8714 of 2015 is allowed and the impugned order dated 29.04.2015 is set aside. (ii) W.P.(MD) No. 8928 of 2015 is disposed of with a direction to the 2nd respondent to consider the case of the petitioner for promotion based on the seniority list at the relevant point of time, as there was no punishment pending against him on the date of consideration of promotion, in view of setting aside the order of punishment by this Court now and the subsequent charge, if any, has no bar for promotion and extension of other benefits available to the petitioner. (iii) W.P.(MD). No. 8948 of 2015, seeking to quash the order of transfer is dismissed as devoid of merits. (iv) Since the petitioner has already handed over the charge, I am of the view that the respondents have not committed any contempt in breaking open the office and therefore, the Contempt Petition in Cont. P(MD) No. 731 of 2015 is closed and the contemnors are discharged from the contempt proceedings. No costs. Consequently, connected miscellaneous petitions are closed.