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2015 DIGILAW 3792 (MAD)

State of Tamil Nadu v. A. S. Radhakrishnan

2015-12-16

N.KIRUBAKARAN, V.RAMASUBRAMANIAN

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JUDGMENT : V. Ramasubramanian, J. 1. Challenging (1) an order of penalty pursuant to the Disciplinary proceedings (2) an order of transfer and (3) the non grant of promotion to the post of Joint Director, the respondent filed three writ petitions in W.P-(MD) Nos. 8714, 8928 and 8948 of 2015. The writ petition challenging the order of transfer was dismissed. But the writ petitions seeking promotion and challenging the order of penalty were allowed by the learned Judge by common order dated 31.07.2015. Aggrieved by the order of the learned Judge, setting aside the penalty and directing the grant of promotion, the State is on appeal in these two writ appeals. 2. Heard Mr. K. Chellapandian, learned Additional Advocate General appearing for the appellant(s) and Mr. Isaac Mohanlal, learned Counsel appearing for the respondent. 3. When the respondent was serving as Chief Educational Officer in Namakkal, a charge memo dated 09.05.2006, was issued, containing eight imputations of misconduct under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The respondent gave an explanation. The then Joint Director of School Education was appointed as Enquiry Officer. She submitted a report on 02.03.2007, holding all the charges not proved. 4. Unfortunately, the Government did not take any action on the enquiry report holding the respondent not guilty of charges. But, in December 2011, the respondent was transferred by an order dated 08.12.2011 and it was followed by another order dated 24.01.2012, directing the continuation of the Enquiry for the purpose of examining additional witnesses and marking additional documents. Interestingly, the original Enquiry Officer recused herself on the ground that she had done her duty by conducting the enquiry on the basis of the documents made available and on the basis of what was indicated in the questionnaire form. Therefore, another Officer was appointed. 5. The new Enquiry Officer proceeded with enquiry in January 2013 and held two out of eight charges, to have been proved. She submitted her enquiry report on 28.01.2013. 6. A copy of the said report was furnished to the respondent and the respondent submitted his explanation insofar as two charges held proved against him. 7. Thereafter, the Government issued G.O.Ms. (ID) No. 170 School Education, dated 16.07.2014, imposing the penalty of stoppage of increment for two years with cumulative effect. The respondent filed a petition for review, but the same was dismissed by G.O.Ms. 7. Thereafter, the Government issued G.O.Ms. (ID) No. 170 School Education, dated 16.07.2014, imposing the penalty of stoppage of increment for two years with cumulative effect. The respondent filed a petition for review, but the same was dismissed by G.O.Ms. 1(2) No. 131 School Education, dated 29.04.2015. 8. During the pendency of the review petition, a panel of Chief Educational Officers fit for promotion to the post of Joint Director was drawn. But the name of the respondent was omitted on account of the penalty imposed. 9. Therefore, the respondent filed in W.P.(MD) No. 8714 of 2015 challenging G.O.Ms. 1(2) No. 131 School Education, dated 29.04.2015, whereby his review against the order of penalty was rejected. 10. After notice was ordered in the writ petition challenging the penalty, the respondent was sought to be transferred and posted as Secretary of the Parent-Teacher Association at Chennai. This transfer was from the post of Chief Educational Officer. Therefore, the respondent filed the second writ petition in W.P.(MD) No. 8948 of 2015, challenging the order of the transfer. 11. The respondent also filed a third writ petition in W.P.(MD) No. 8928 of 2015 seeking promotion to the post of Joint Director. 12. On 04.06.2015, the learned Judge granted an order of status-quo in the writ petition challenging the transfer order. But it appears that an attempt was made to take possession of the Office of the Chief Educational Officer. As the Office was found locked, it was broken open and the officials of the Directorate of School Education took possession. Therefore, the respondent filed a contempt petition in Cont. P(MD) No. 731 of 2015. 13. The learned Judge took up for hearing all the three writ petitions and the contempt petition together. He dismissed the writ petition challenging the order of transfer and closed the contempt petition. But, the learned Judge found that the order directing the continuation of enquiry for the purpose of examination of additional witnesses and documents, was not permitted by law. Hence, the learned Judge set aside the order of penalty and directed to grant promotion. 14. Hence, the State has come up with the above two writ appeals challenging the order passed in the two writ petitions, one arising out of penalty and another arising out of refusal to grant promotion. 15. Hence, the learned Judge set aside the order of penalty and directed to grant promotion. 14. Hence, the State has come up with the above two writ appeals challenging the order passed in the two writ petitions, one arising out of penalty and another arising out of refusal to grant promotion. 15. As we have pointed out earlier, eight charges were framed against the respondent, in relation to his service in Namakkal as Chief Educational Officer. The then Joint Director of School Education conducted the enquiry on the basis of the documents listed in the annexure to the charge memo. By a report dated 02.03.2007, the Enquiry Officer held that none of the charges was proved. 16. Once, the enquiry report is submitted holding the charges not proved, there are two courses of action open to the disciplinary authority. First is to accept the report and pass a final order dropping further action. The second course of action is to come to an independent conclusion different from the findings recorded by the Enquiry Officer and issue notice to the delinquent to show-cause as to why a different view should not be taken. Both these courses of action were not followed by the Government. 17. If both the above courses of action are not acceptable to the disciplinary authority, the disciplinary authority should set aside the findings and order for a de nova enquiry. Even this third course of action was not resorted to by the Government. On the contrary, the Government waited for four years from 02.03.2007 to 20.06.2011, without taking any decision. On 20.06.2011 the Government issued a Letter No. 11132/A2/2006-12. By the said letter, the Government directed the Director of School Education to request the Enquiry Officer to examine the witnesses produced by the Directorate of Vigilance and Anti Corruption and also examine the documents produced by them in respect of charges 2 and 7. 18. There was a fundamental flaw in the letter of Government dated 20.06.2011. The first flaw is that the enquiry report dated 02.03.2007, was not set at naught. But, the Government stated that the charges 2 and 7 were already confirmed and proved by the Directorate of Vigilance and Anti-Corruption and that therefore the documents produced by them should be examined. This is not a procedure that is accepted by law. 19. The first flaw is that the enquiry report dated 02.03.2007, was not set at naught. But, the Government stated that the charges 2 and 7 were already confirmed and proved by the Directorate of Vigilance and Anti-Corruption and that therefore the documents produced by them should be examined. This is not a procedure that is accepted by law. 19. Moreover, out of eight charges framed against the appellant, charges 2 and 7 did not really concern the allegations of corrupt practice. In particular, charge No. 7 was the alleged construction of a temple within the office of the Chief Educational Officer, Namakkal, thereby causing religious disharmony. We do not know how the Vigilance and Anti Corruption deals such charges. 20. Moreover, the format of the charge memo issued under Rule 17(b) is supposed by the Rules, to contain Annexure-1 to IV. Every charge memo issued under Rule 17(b) should contain in Annexure-I, the articles of charges. Annexure-II should contain imputation of misconduct leading to the framing of articles of charges; Annexure-III to the charge memo should contain the documents on the basis of which the charges are sought to be proved. Annexure-IV should contain the list of witnesses. 21. A charge memo under Rule 17(b) is always served along with a questionnaire form. In this case the witnesses that the Government wanted the enquiry officer to examine by their letter dated 20.06.2011 and the documents that they called for from the Directorate of Vigilance and Anti Corruption did not form part of the Annexure to the charge memo. Therefore, it is clear that for un-known reasons, the order dated 20.06.2011 was passed. 22. It is only on account of the manner in which the Government issued the proceedings dated 20.06.2011, directing the enquiry to take place that the original Enquiry Officer felt embarrassed to continue with the enquiry. By a letter dated 02.08.2011, the Director of School Education requested Tmt. V. Raja Rajeshwari, Joint Director of School Education (T) to proceed further with the enquiry. But by a reply dated 03.08.2011, she informed the Director that she had already completed the enquiry as per the Rules and on the basis of the evidence indicated in the annexure to the charge memo. Therefore, she recused herself from further proceeding. 23. V. Raja Rajeshwari, Joint Director of School Education (T) to proceed further with the enquiry. But by a reply dated 03.08.2011, she informed the Director that she had already completed the enquiry as per the Rules and on the basis of the evidence indicated in the annexure to the charge memo. Therefore, she recused herself from further proceeding. 23. From all these factual aspects, the learned Judge came to the conclusion that the proceedings that commenced for the second time were completely without jurisdiction. 24. The learned Judge also took note of the decision of the Honorable Supreme Court in K.R. Deb v. The Collector of Central Excise, Shillong AIR 1971 SC 1447 , (1971) 2 SCC 102 , LNIND 1971 SC 228, 1971 I LLJ 427 on the question of second enquiry and the later decision in Punjab National Bank and Others v. Kunj Behari Misra, AIR 1998 SC 2713 , (1998) 7 SCC 84 , LNIND 1998 SC 770, 1998 II LLJ 809. 25. Therefore, the learned Judge rightly came to the conclusion that the direction issued by the Government on 20.06.2011 after a lapse of four years of the conclusion of the disciplinary proceedings, to proceed further with additional documents and additional evidence was completely contrary to the law. As a corollary to such conclusion, the learned Judge held the promotion that was wrongfully denied to the respondent also to be given to him. 26. But the learned Judge, in his anxiety to do justice, passed a remark in paragraph (27) of his order. The remark was made by the learned Judge against the Secretary to School Education. This appears to have infuriated the Government to come up with these appeals. Therefore, in order to avoid further harassment, to the respondent, we expunge the remark in paragraph (27) of the judgment of the learned Judge so that the State is not compelled to continue to harass the respondent by taking the matter to any higher forum. Therefore, these writ appeals are disposed of expunging the remarks made against the Secretary to School Education, in paragraph (27) but confirming the remaining part of the order of the learned Judge and directing the appellant to promote the respondent within a period of four weeks from the date of receipt of a copy of this order and file a report before this Court. It is stated that the transfer order which became subject matter of one writ petition led to another charge memo issued on 10.06.2015. We are not concerned with such charge memo. No costs. Consequently, connected Miscellaneous petitions are closed.