S.Vijayaragavan, Vs The Secretary to Government

Writ Petition is filed under Article 226 of Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to G.O.(1D) No.595 Municipal Administration and Water Supply (Na.Pa.1) Department dated 4.12. 2013 issued by the Secretary to Government Municipal Administration and Water Supply Department Chennai 9 the first respondent herein in confirming the proceedings of the Commissioner of

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W.P No.32222 of 2014

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Municipal Administration Chepauk Chennai 5 the second respondent herein made in his office Na.Ka.No.90250/2009/K2 dated 9.5.2011 quash the same and direct the respondents herein to sanction all the consequential service and monetary benefits which has been withheld on account of penalty such as in increment, promotion, seniority and disburse all the arrears within a time frame.

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For Petitioner : Mr. K.Rajkumar

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For Respondents : Mr.V.Veluchamy,AGP

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O R D E R

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The petitioner challenges the order dated 04.12.2013 passed by the first respondent confirming the order dated 09.04.2011 passed by the second respondent, whereby the punishment of stoppage of increment for a period of three years with cumulative effect was imposed.

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The petitioner, while serving as a Revenue Inspector, was issued a charge memo dated 16.02.2009 containing ten charges. The allegations against the petitioner are that, while functioning as Revenue Inspector, he was negligent in the collection of taxes, thereby causing monetary loss to the Municipality, and that he failed to take steps for renewal of shop leases after the expiry of the lease period. The petitioner submitted his explanation denying the charges. The explanation was found unsatisfactory, necessitating the initiation of disciplinary

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proceedings. The Enquiry Officer, after conducting the enquiry, submitted a report holding that all charges, except Charge Nos. 6, 7 and 10, were proved. Thereafter, a second show cause notice was issued to the petitioner. The petitioner submitted a further explanation, and upon consideration of the enquiry report and the further explanation, the disciplinary authority imposed the punishment for the charges held proved.

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The learned counsel for the petitioner submitted that the documents relied upon by the Enquiry Officer in concluding that the charges were proved were neither furnished to the petitioner nor marked as exhibits, nor were they confronted to him during the enquiry. He further submitted that no witnesses were examined to substantiate the charges against the petitioner. Therefore, according to him, the enquiry culminating in the impugned order of punishment is in clear violation of Rule 8(2) of the Tamil Nadu Municipal Services (Discipline and Appeal) Rules, 1970. In support of his submissions, he placed reliance on the following decisions:

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1. Apex Court in the case of Kashinath Dikshita Vs. Union of India and Others (1986 Administrative Tribunal Cases 176).

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2. Apex Court in the case of State of Uttar Pradesh and Others Vs. SarojKumar Sinha [(2010) 2 SCC 772]

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3. Coordinate Bench of this Court in the case of K.M.Kumar VS. Managing Director, Tamil Nadu State Marketing Corporation Ltd., ( W.P.No. 22720 of 2019, dated 17.12.2019 [2020 (1) CWC 321]

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In response, the learned counsel for the respondents submitted that the materials placed before the Enquiry Officer clearly establish that the petitioner was negligent in collecting taxes and failed to take steps to renew the shop leases after the expiry of the lease period, thereby causing monetary loss to the Municipality. The learned counsel further submitted that the findings of the Enquiry Officer are based on evidence and records. Therefore, in the absence of any perversity or arbitrariness in the impugned order, the same cannot be faulted and does not warrant interference by this Court.

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The submissions of the learned counsel on either side were heard, and

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the materials placed on record were perused.

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W.P No.32222 of 2014

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The charge memo dated 16.02.2009 contains ten charges,.The substance of the charges against the petitioner, who was serving as Revenue Inspector, is that he was negligent in the discharge of his official duties, particularly in the collection of various municipal taxes such as property tax, professional tax, lease amounts, and water tax. It is alleged that he failed to collect arrears as per the demand, did not take effective steps to renew lease items or revise taxes, and thereby caused substantial revenue loss to the Municipality. He is also accused of failing to implement Government Orders relating to lease items and of signing an unregistered document contrary to service rules, which led to a complaint and alleged delay in taking appropriate action.

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Further, the petitioner is charged with dereliction of duty and disobedience of official instructions. The allegations include failure to visit wards despite marking attendance, absence from duty on specific dates, nonmaintenance and non-submission of the daily diary for signature by the Commissioner, failure to attend review meetings despite notice, proceeding on leave without proper permission, and not complying with directions issued by the Regional Director of Municipal Administration. Collectively, the charges portray habitual negligence, lack of discipline, and non-cooperation, allegedly bringing disrepute to the Municipality.

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During the course of the enquiry, the Enquiry Officer procured documents from the departments concerned and extracted details relating to tax demands in respect of the works alleged to have been allotted to the petitioner. The Enquiry Officer also extracted the names of the lessees and the dates of expiry of the lease periods. The petitioner, before the Enquiry Officer, denied all the charges and stated that he was not wilfully negligent in collecting taxes or in renewing the leases of shops after the expiry of the lease period.

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It was further stated by the petitioner that, on account of restraint orders passed by the jurisdictional Court, he was not in a position to collect the taxes. He also produced documents to show that certain leases were cancelled on the ground that the lessees had not paid the arrears of revenue. However, the Enquiry Officer did not mark the documents relied upon for arriving at the conclusion that the charges against the petitioner were proved. The Enquiry Officer merely recorded the charges, the defence of the delinquent, and the explanation submitted by the petitioner, and thereafter concluded that the petitioner had acted negligently and failed to discharge his duties with due responsibility, thereby causing monetary loss to the Corporation.

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Rule 8 of the Tamil Nadu Municipal Services (Discipline and Appeal) Rules, 1970 prescribes the procedure for imposing penalties. Sub-rule (2) of

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Rule 8, which deals with the imposition of major penalties, mandates that definite charges shall be communicated to the person charged together with a statement of allegations on which each charge is based. It further stipulates that an oral enquiry shall be conducted, and at such enquiry, oral evidence shall be adduced in respect of those allegations which are not admitted. The delinquent employee is entitled to cross-examine the witnesses, to give evidence in person, and to have witnesses examined on his behalf, subject to the discretion of the Enquiry Officer to refuse, for special and sufficient reasons recorded in writing, to call any particular witness. After completion of the enquiry, the person charged is also entitled to submit a further written statement of defence, if he so desires.

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In the present case, the charge memo was not accompanied by a statement of allegations. No oral evidence was adduced by examining witnesses, and no documents were marked or confronted to the petitioner during the enquiry. Therefore, the enquiry conducted, culminating in the passing of the impugned order, is in clear violation of Rule 8(2) of the Rules, 1970.

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The learned counsel for the Municipality contended that the petitioner himself was the custodian of the documents and, therefore, there was no necessity to furnish or produce the documents during the enquiry.

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However, the Hon’ble Supreme Court, in the decision of the State of Uttar Pradesh (cited supra) , has held that even if the delinquent had continued in the same department, it would not have been possible for him to take custody of the documents, particularly when he was no longer in charge of the office. It was further observed that when documents are required to be collected from different offices, it would not be feasible for the delinquent to effectively defend himself without being furnished with the relevant records. In such circumstances, the argument advanced by the learned counsel for the respondents is misplaced and cannot be accepted.

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The Hon’ble Supreme Court in Kashinath Dikshita's case held that a government servant facing disciplinary proceedings must be given a reasonable and effective opportunity to defend himself. Such an opportunity necessarily includes supply of copies of the relevant documents and statements proposed to be relied upon against him. Without access to these materials, the delinquent employee cannot properly prepare his defence, effectively cross-examine

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witnesses, or point out inconsistencies in the allegations. The apex Court further held that whether non-supply of documents has caused prejudice must be determined on the facts of each case.

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15.Therefore, when the entire case against the petitioner is founded on documentary evidence, the material documents ought to have been furnished to him and properly marked as exhibits during the enquiry. The failure to supply and exhibit such documents, thereby denying the petitioner an effective opportunity to defend himself, vitiates the enquiry for violation of the principles of natural justice.

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In light of the above, this Court is of the considered view that the enquiry culminating in the passing of the impugned order stands vitiated for non-compliance with Rule 8 of the Tamil Nadu Municipal Services (Discipline and Appeal) Rules, 1970 and Article 311(2) of the Constitution of India. The charge memo was not accompanied by a statement of allegations; the documents relied upon by the Enquiry Officer were neither furnished to the petitioner nor marked or confronted during the enquiry; and the charges framed against the petitioner were not definite but vague in nature.

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Accordingly, the following order is passed:

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i. The Writ Petition is allowed.

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ii. The impugned order passed by the respondent is set aside.

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iii. The respondents are directed to grant all consequential benefits, including monetary benefits that were withheld on account of the penalty, such as increments, promotion and seniority, and to disburse the arrears within a period of three (3) months from the date of receipt of a copy of this order.

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