Madras High Court
The Chairman-Cum-Appellate Authority vs M.Hariharan on 6 July, 2017
Author: Nooty.Ramamohana Rao
Bench: Nooty.Ramamohana Rao, M.Dhandapani
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2017
CORAM
THE HONOURABLE MR.JUSTICE NOOTY.RAMAMOHANA RAO
And
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.A.No.1047 of 2011
1.The Chairman-cum-Appellate Authority,
Bharathiar Palkalai Koodam,
Puducherry.
2.The Government of Puducherry,
Rep. by its Special Secretary,
(Arts and Culture) and
Vice-Chairman
Bharathiar Palkalai Koodam,
Secretariat, Puducherry. ... Appellants
Vs.
M.Hariharan ... Respondent
Prayer:
Writ Appeal filed under Clause 15 of Letters Patent seeking to set aside the order dated 03.01.2011 passed in W.P.No.23787 of 2010.
For Appellants : Mr.P.V.S.Giridhar
for M/s.Sai Associates
For Respondent : Mr.L.Chandrakumar
J U D G M E N T
(Order of the Court was made by NOOTY.RAMAMOHANA RAO,J.) This appeal is preferred by the respondents in W.P.No.23787 of 2010 aggrieved by the judgment rendered by this Court on 03.01.2011 allowing the writ petition and quashing the order dated 14.10.2010 passed by the Appellate Authority enhancing the punishment inflicted upon the writ petitioner by the Disciplinary Authority.
2.Heard Shri.P.V.S.Giridhar, learned Senior Counsel appearing for the appellants and Shri.L.Chandrakumar, learned Senior Counsel appearing for the respondent/ writ petitioner.
3.The facts lie in a very narrow compass. The writ petitioner was subjected to disciplinary proceedings by drawing a charge memo on him on 17.12.2002. Those disciplinary proceedings have culminated in an order of punishment imposed by the Disciplinary Authority, reducing the pay of the writ petitioner by two stages from Rs.15,375/- to Rs.14,625/- in the time scale of pay of Rs.12,000-375-18000/- for a period of two years. It would be appropriate to notice that the Disciplinary Authority in his punishment order dated 18.09.2007 has assigned certain reasons for arriving at the conclusion that the writ petitioner was guilty of the charges proved against him in the penultimate paragraph of the punishment order dated 18.09.2007.
4.It is against this order of punishment dated 18.09.2007, the writ petitioner appears to have preferred an appeal on 12.11.2007. Considering the said appeal, the Appellate Authority namely, the Hon'ble Minister for Education, Art and Culture has drawn a show cause notice, thorugh his memorandum dated 14.06.2010. The crisply drawn show cause notice reads as under:
Attention is invited to reference second cited on the above subject, In this regard, it is informed that your appeal was considered under Rule 27 (2) (a) (b) (c) of CCS (CCA) Rules, 1965 and the undersigned have gone through all the records/statements/materials placed on file and also pleas put forth by you in your appeal petition. It is felt that the explanation and grounds put-forth by you in your appeal petition are not satisfactory and also the undersigned feels that the penalty imposed does not commensurate with the gravity of the offence committed by you which are violating Rule 3 (2) (i) & (ii) (iii) of CCS (Conduct) Rules, 1964. Hence, the undersigned is of the opinion to enhance the penalty imposed as per Rule 27 (2) (c) (i) of CCS (CCA) Rules, 1965. Finding no response thereof from the writ petitioner, on 14.10.2010, the Appellate Authority had imposed the enhanced penalty of removal from service.
5.It is appropriate to notice that the first paragraph of the Appellate order dated 14.10.2010 traces as to why Disciplinary proceedings have been initiated. All the ten charges which have been framed against the writ petitioner have been extracted thareafter and in the next paragraph, it is recorded that charge no.4 was held as proved while charge nos.7 and 8 were proved partially and at the same time charge nos.1, 2, 3, 5, 6, 9 and 10 were not held proved, by the Enquiry Officer. Then in the next paragraph, the order of imposition of the punishment has been traced out. That was followed by the grounds of challenge mounted by the writ petitioner which were quoted with reference to charge nos.4, 7 and 8.
6.After having set out the facts and other circumstances and also the grounds of attack, the Appellate Authority has recorded his findings with reference to the said grounds and decided to reject the appeal. However, in the last paragraph of the Appellate order, the Appellate Authority felt that the penalty imposed is not commensurate with the gravity of the offence committed by the delinquent official and hence he deserves to be awarded a severe punishment and accordingly, enhanced the punishment to that of removal from service. It is this order which has been challenged in the writ petition.
7.Amongst various grounds urged, one of the grounds urged was that the Appellate Authority has not assigned any reasons for enhancing the punishment. Secondly, the show cause notice which just preceded the said enhanced punishment order dated 14.10.2010 is bald and laconic. No reasons are assigned in the show cause notice. The learned Single Judge has accepted this contention canvassed on behalf of the writ petitioner and accordingly, set aside the Appellate order.
8.Shri.P.V.S.Giridhar, learned Senior Counsel appearing for the appellants would urge before us that when a show cause notice has been issued to the writ petitioner on 14.06.2010 proposing to enhance the punishment, the writ petitioner kept quiet by not responding to it. The Appellate Authority has waited patiently for nearly four months for the response from the writ petitioner and therefore, felt that the writ petitioner has no objection for imposition of enhanced punishment on him for the proven mis-conduct.
9.Shri.P.V.S.Giridhar would urge that in the absence of any material to suggest that the punishment now imposed by the Appellate Authority is either too harsh or dis-proportionate to the proven mis-conduct, it would not be appropriate for this Court, in exercising its judicial review power to interfere with any such order. He would also commend for re-acceptance the reasons assigned by the Appellate Authority as to why the grounds urged by the writ petitioner are not worth any serious merit for consideration. On the other hand, when the Appellate Authority has arrived at a conclusion that the punishment imposed is too in-significant a punishment for the quantum of mis-conduct held established against the writ petitioner, punishment is legitimately entitled to be enhanced.
10.Per contra, Shri.L.Chandrakumar, learned Senior Counsel appearing for the respondent/ writ petitioner would urge that when once the show cause notice is a bald and laconic one, the fact that some reasons have been assigned by the Appellate Authority in his final order will not absolve him of his obligation to propose the reasons in the show cause notice dated 14.06.2010. He therefore, submits that the order passed by the learned Single Judge does not warrant interference at our hands.
11.There is hardly any doubt, at this distant point of time that disciplinary proceedings initiated against the public servant are in the nature of quasi judicial proceedings. Principles of natural justice have to be adhered to steadfast throughout the course of conducting such proceedings. While one can concede power in the hands of the Appellate Authority to enhance the punishment imposed by the Disciplinary Authority, which infact is available under Rule 27(2) of the CCS CCA Rules, which Rules have been adopted by the second respondent/ appellant organisation, but, for the purpose of enhancing the punishment, a show cause notice is required to be drawn as a part of adherence to the principles of natural justice. Afterall, no person can be condemned unheard.
12.Therefore, when an aggrieved employee submits an appeal against an order of punishment imposed by the Disciplinary Authority, he would be under the belief that the Appellate Authority would be confining the consideration as to whether the order passed by the Disciplinary Authority is sustainable or not and if it is not sustainable, whether the matter should be remitted back for consideration afresh or appropriately modify the punishment as urged by the employee concerned. On the other hand, if the power to enhance the punishment by modifying the order passed by the Disciplinary Authority is to be undertaken, any such exercise is likely to present adverse impact and would also cause prejudice to the interest of the employee concerned. Hence, a pre-decisional hearing in that regard is required to be afforded.
13.The very purpose of drawing a show cause notice is to convey in clear terms what was sought to be undertaken by the Appellate Authority. If the Appellate Authority tersely communicates its decision to enhance the punishment without spelling out the grounds or reasons for such likely enhancement of the punishment, the employee concerned would be left to grope in the dark as he would not be knowing the reasons that weighed heavily on the mind of the Appellate Authority before he firms up his opinion as to whether the case calls for enhancement of punishment.
14.If the reasons are not spelt out, the employee concerned will not be able to furnish an effective reply. The show cause notice is not intended to be an empty formality. It is squarely intended to convey to the man concerned the reasons for which the proposed action is either taken or initiated. When show cause notice spells out the reasons, the employee concerned will have an effective opportunity to neutralize those reasons that weighed with the Authority which has drawn the show cause notice. Therefore, a bald, laconic or non reasoned show cause notice reduces itself to a mere empty formality and in substance, they will not be providing a meaningful or truthful opportunity for the person concerned to set forth his objections in respect thereof. When no such opportunity is thrown to the employee, the very exercise of drawing a show cause notice reduces its utility and effectiveness. It becomes an un-productive exercise for lack of substance and meaning.
15.For sheer lack of reasons in the show cause notice, the final Appellate Order passed on 14.10.2010 cannot be sustained because when the substratum collapses, the superstructure has to necessarily come down. We have therefore, no hesitation to hold that the show cause notice drawn in the instant case on 14.06.2010 by the Appellate Authority is not sustainable.
16.This apart, it has been consistently set forth by the Courts in this Country that reasons bring about lot of clarity and transparency to the entire proceedings. Reasons are considered to be the live links which can effectively demonstrate the decision maker's application of mind upon the person concerned. At best, they will clearly convey to the person concerned, the area of consideration and the horizen becomes far more clearer. Opaque or non-transparent exercise of power is always charectarized as an arbitrary exercise of power. Every power available with every Public Authority has to be exercised fairly and properly. When such an exercise is required to be carried fairly, conveying reasons becomes an imminent requirement, lest the proceedings still be not transparent but will be opaque only. We are supported in our view, in this regard, by the judgment rendered in AIR 1977 SCC 567 (Tara Chand Khatri Vs. Municipal Corporation of Delhi and others).
17.We have therefore, no hesitation to dismiss this appeal and leave the parties to bear their respective costs and also leave them to work out their respective remedies.
[N.R.R.,J.] [M.D.I.,J.]
06.07.2017
pri
Speaking Order/ Non Speaking Order
Index: Yes / No
Internet: Yes / No
NOOTY.RAMAMOHANA RAO,J.
And
M.DHANDAPANI,J.
pri
W.A.No.1047 of 2011
06.07.2017