K. K. Sasidharan, J.@mdashThis writ appeal at the instance of the Government challenges the order dated 26.11.2009 passed by the learned single Judge in Writ Petition No. 16210 of 2008, whereby and where under the order passed by the disciplinary authority as confirmed by the appellate authority was quashed.
2. While the Respondent was functioning as Executive Officer Grade-I at Veerakeralam Town Panchayat in the District of Coimbatore, he was issued with a charge memo on 10.4.2007 framing six charges which read as under:
Charge No. 1: Thiru. R. Ravi, formerly Executive Officer (U/S) Veerakeralam Town Panchayat during the period of his service has regularized the house sites by collecting Rs. 1/- per sq.ft., located in S.F. No. 78/2 belonging to one family Thiru. C. Marimuthu and his two daughters Jayanthi, Suganthi. It reveals from the records that he has violated the Instructions in G.O. 59, M.A. & W.S. dated 25.7.2006. In this instance, 38 House sites in part of layouts have been regularized and thereby, financial loss of Rs. 10,83.433/- to the Panchayat as per Annexure-II of Charge Memo.
Charge No. 2: Thiru. R. Ravi, formerly Executive Officer (U/S) Veerakeralam Town Panchayat during the period of his service has misapplied the G.O. No. 59 M.A. & W.S.
Department, Dated 25.7.2006 and regularized the house sites by collecting Rs. 1/- per sq.ft., located in S.F. No. 261/2 of Veerakeralam Town Panchayat belonging to Thiru. M.
Shanmugasun daram for an extent of area of 1.10 acres. In this regard, no records were produced. In this instance, the layout consist of 25 house sites formed in the agriculture land 3 have been regularized. It reveals from the records that he has violated the G.O. In this instance, 25 House sites in this layouts have been regularized and thereby, financial loss of Rs. 5,90,202/- to the Panchayat as per Annexure-II of Charge Memo.
Charge No. 3: Thiru. R. Ravi, formerly Executive Officer (U/S) Veerakeralam Town Panchayat during the period of his service has misapplied the G.O. No. 59 M.A. & W.S.
Department, Dated 25.7.2006 and regularized 53 house sites in parts of layouts by collecting Rs. 1 /- per sq.ft., located in S.F. No. 278 belonging to Thiru. Sundragantha Kareer and Leena Kareer for an extent of area of 2.62 acres. In this instance, the 53 house sites formed in the part of layouts have been regularized. It reveals from the records that he has violated the Instructions issued in the G.O. In this instance, 53 house sites in part of layouts have been regularized and thereby financial loss of Rs. 11,13,979/- to the Panchayat as per Annexure- II of Charge Memo.
Charge No. 4: Thiru. R. Ravi, formerly Executive Officer (U/S) Veerakeralam Town Panchayat during the period of his service has misapplied the G.O. No. 59 M.A. & W.S.
Department, Dated 25.7.2006 and regularized 64 house sites in one layout by collecting Rs. 1 /- per sq.ft., located in S.F.
No. 359/1 belonging to Thiru. Velusamy for an extent of area of 2.20 acres. In this instance, the 64 house sites formed in the layouts have been regularized. It reveals from the records that he has violated the G.O. In this instance, 64 house sites in this layout have been regularized and thereby financial loss of Rs. 10,73,967/- to the Panchayat as per Annexure- II of Charge Memo.
Charge No. 5: Thiru. R. Ravi, formerly Executive Officer (U/S) Veerakeralam Town Panchayat during the period of his service has not maintained any register for the regularization of house sites. It was found that 286 applications have been received and regularized as per record signed by the E.O. on 31.12.2006. There is no E.O. remarks on 169 applications regarding the action taken and there is no office copies of the proceedings issued in respect of regularization of house sites. It reveals that Office procedure have not been followed.
Charge No. 6: He has violated the code of conduct Rule 20(I) of 1973.
3. The Respondent was called upon to submit his explanation and accordingly, he submitted his explanation. Since the explanation was not found to be convincing, the disciplinary authority appointed Enquiry Officer to conduct an enquiry into the said charges. The Enquiry Officer, without appointing a Presenting Officer or examining the witnesses in support of the above charges, submitted a report indicating that Charges 1 to 4 were proved and that Charges 5 and 6 were not proved. The said report was considered by the disciplinary authority. The disciplinary authority was of the view that the enquiry report was not in accordance with the Tamil Nadu Civil Service (Discipline & Appeal) Rules and as such, a fresh report has to be submitted by the Enquiry Officer. The matter was, therefore, remitted back to the Enquiry Officer. Subsequently, the Enquiry Officer submitted a fresh report indicating that all the charges framed against the Respondent were proved. The fresh report was considered by the disciplinary authority and accordingly, the Respondent was awarded the punishment of removal from service. The said order was challenged before the appellate authority. The appellate authority concurred with the views expressed by the disciplinary authority and accordingly, the appeal was rejected. Feeling aggrieved by the said order, the Respondent preferred Writ Petition No. 16210 of 2008.
4. Before the learned single Judge, the Respondent contended that the enquiry was not conducted by the Enquiry Officer. According to the Respondent, no witnesses were examined in support of the charges framed against him. Though the enquiry report mentions about certain document s , none of the document s were marked during the time of enquiry and as such, he was denied the opportunity of cross examination of the witnesses with reference to those document s.
5. In the counter affidavit filed by the disciplinary authority, viz. the District Collector before the learned single Judge, it was admitted that none of the witnesses were examined. According to the disciplinary authority, the charges were framed on the basis of records and as such, there was no necessity to examine witnesses. Accordingly, the disciplinary authority justified the imposition of punishment on the Respondent.
6. The learned single Judge found that the witnesses were not examined in support of the charges framed against the Respondent. The document s were referred to in the enquiry report without giving an opportunity to the Respondent to cross- examine the witnesses with reference to those document s. It was also found that originally, the Enquiry Officer reported that only Charges 1 to 4 were proved. However, the matter was remanded to him by the disciplinary authority for submitting a fresh report. Subsequently, the Enquiry Officer submitted a fresh report indicating that all the charges were proved. However, during the second stage, no opportu nity was given to the Respondent and as such, the second report was submitted behind his back. The learned single Judge arrived at a factual finding that the entire proceedings was vitiated as it was conducted without adhering to the principles of natur al justice. Accordingly, the writ petition was allowed. Feeling aggrieved by the said order, the Appellants are before us.
7. We have heard the learned Special Government Pleader on behalf of the Appellants and the learned Counsel appearing for the Respondent.
8. There is no dispute that a charge memo was issued to the Respondent on 10.4.2007 indicating the six charges extracted above. The charge memo does not contain the names and addresses of the witnesses. It is a matter of record that no witnesses were examined in support of the charges framed against the Respondent. The disciplinary authority has taken a strange stand that the charges were based on records and as such, there was no necessity to examine witnesses. We are not in a position to approve the said stand taken by the disciplinary authority.
9. The charges framed against the Respondent were serious in nature. Therefore, he should have been given an opportu nity to present his version. Failure on the part of the Enquiry Officer to examine the witnesses in support of the charges framed really vitiated the entire proceedings. Though the Enquiry Officer referred to certain document s, it is a matter of record that no records were marked during the time of enquiry. Therefore, the Respondent was in total darknes s with respect to the document s used against him. These aspects were considered by the learned single Judge.
10. There is one more infirmity which was found by the learned single Judge. Originally, the Enquiry Officer found that only Charges 1 to 4 were proved. The report was not found acceptable to the disciplinary authority. Therefore, he referred the matter once again to the Enquiry Officer. The Enquiry Officer, without notice to the Respondent, submitted a fresh report indicating that all the six charges were proved. This also caused serious prejudice to the Respondent. Though the contentions regarding non-examination of witnesses as well as marking of document s behind the back of the Respondent were all taken up by the Respondent, the Appellants have not denied the said fact. In fact, the disciplinary authority clearly admitted that no witnesses were examined and the document s, though referred to, were not marked during the process of enquiry. It was only in the said circumst ance s, the learned single Judge arrived at a factual finding that the enquiry was not conducted in the manner known to law. Therefore, we are in full agreement with the views expressed by the learned single Judge.
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14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The Enquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties.
The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnes s e s merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
12. We may also refer to the judgment of the Apex Court in
13. Therefore, we are of the considered opinion that the learned single Judge was fully justified in interfering with the order passed by the disciplinary authority as confirmed by the appellate authority. We do not find any reason to take a different view in the matter.
14. In upshot, we dismiss the writ appeal. There shall be no order as to costs.
