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Madras High Court · body

1992 DIGILAW 561 (MAD)

M. v. Balu VS The Chairman, Tamilnadu Housing Board and another

1992-11-13

SOMASUNDARAM

body1992
Judgment : This writ petition has been filed for the issue of a writ of certiorarified mandamus to quash the order of the first respondent dated 212. 1983 in his proceedings Ref.No.DC3/74352/80 and to direct the 1st respondent to reinstate the petitioner in service. 2. On 28. 1980, at about 3.30 p.m., Thiru L.Vinayagam, Building Inspector of Madurai Special Division accompanied by the Assistant Engineer Thiru Jayachandran, complained to the Executive Engineer and Administrative Officer, Madurai that he was beaten up by chappal by the Watchman Thiru V.Gurusamy and that he was threatened with a knife by the petitioner, while he was engaged in unloading steel rods at Ellis Nagar store-yard. The Executive Engineer immediately went to the spot with two Assistant Executive Engineers Thiru R.Sundaram and Thiru S.Elango. When they entered the scheme area, they found the petitioner lying on the ground fully drunk and in a unconscious state. In the above circumstances, the following charges were framed against the petitioner: “1. That he was in drunken mood and threatened with knife Thiru L.Vinayagam, building inspector, while he was performing his official duties; 2. That he allowed himself under alcoholic influence and thus failed in his official duties of watching storeyard and scheme area.” The petitioner was directed to submit his explanation for the above charges and to return the questionnaire form duly filled in. The petitioner submitted a reply to the charge memo denying the charges levelled against him. Thereafter, an enquiry was conducted by the Executive Engineer and Administrative Officer, Madurai Special Division. The Executive Engineer and Administrative Officer found that the charges framed against the petitioner have been proved. By the memo dated 8. 1981, the first respondent issued a show cause notice to the petitioner asking him to show cause within 15 days from the date of receipt of the memo as to why his increment should not be stopped for a period of one year without cumulative effect and to treat the period of suspension as leave to which he is eligible. On 210. 1981, the petitioner submitted his reply to the show-cause notice dated 8. 1981. Thereafter, another complaint was received against the petitioner to the effect that he entered the room of the Assistant Executive Engineer-I, at 12.30 p.m. of 37. 1982 and uttered unparliamentary words and also tried to assault the Executive Engineer under the influence of alcohol. On 210. 1981, the petitioner submitted his reply to the show-cause notice dated 8. 1981. Thereafter, another complaint was received against the petitioner to the effect that he entered the room of the Assistant Executive Engineer-I, at 12.30 p.m. of 37. 1982 and uttered unparliamentary words and also tried to assault the Executive Engineer under the influence of alcohol. In respect of the said complaint, the petitioner was placed under suspension with effect from 8. 1982. Then on 18. 1983, the first respondent issued another show cause notice to the petitioner and the other watchman Gurusamy asking them to show cause within 15 days from the date of receipt of the notice as to why they should not be removed from service for the charges proved against them. To the said show cause notice dated 18. 1983, the petitioner submitted his reply on 9. 1983. On 212. 1983, the respondent passed an order removing the petitioner and the other watchman Gurusamy from service, pursuant to the show-cause notice issued earlier on 18. 1983. The said order dated 212. 1983 is challenged in this writ petition. .3. Mr.S.M.Loganathan, the learned counsel for the petitioner submitted that the respondent ought to have dealt with the two charge memos namely, the charge memo dated 2. 1981 relating to the incident dated 28. 1980 and the charge memo dated 8. 1982 relating to the second incident dated 37. 1982 separately and passed separate orders on the basis of the independent enquiries conducted pursuant to the two charge memos referred to above. The learned counsel further contended that the impugned order is illegal and liable to be quashed because the respondents have clubbed the two charge memos issued with regard to two separate incidents which took place on two different dates and the two enquiry reports and passed the order challenged in this writ petition in respect of the misconduct alleged in both the charge memos. There is no merit in the contention of the learned counsel for the petitioner. In respect of the incident that took place on 28. 1980, the charge memo dated 2. 1981 was served on the petitioner. According to the respondents after enquiry into the charges contained in the charge memo dated 2. 1981, a show-cause notice was issued to the petitioner on 8. In respect of the incident that took place on 28. 1980, the charge memo dated 2. 1981 was served on the petitioner. According to the respondents after enquiry into the charges contained in the charge memo dated 2. 1981, a show-cause notice was issued to the petitioner on 8. 1981 proposing to impose the punishment of stopping the increment for a period of one year without cumulative effect and to treat the period of suspension as leave to which the petitioner is eligible. The petitioner submitted his explanation to the show-cause notice dated 8. 1981 on 210. 1981. Further, the first respondent did not pass any final order pursuant to the show-cause notice dated 8. 1981 proposing the punishment of stoppage of increment. Thereafter, on 18. 1983, the first respondent Issued another show-cause notice to the petitioner. In the said show-cause notice dated 18. 1983, a reference is made only to the charge memo dated 2. 1981, the reply of the petitioner dated 13. 1981, the earlier show-cause notice dated 8. 1981 and the reply of the petitioner dated 210. 1981. However, in the body of the show cause notice dated 18. 1983, the first respondent refers to the second incident that took place on 37. 1982, the charge memo issued dated 8. 1982 to the petitioner with regard to the incident that took place on 37. 1982, the oral enquiry said to have been conducted by the Executive Engineer and Administrative Officer on 10. 1982, the resolution of the Board dated 11. 1982 and thereupon called upon the petitioner and the other watchman Gurusamy to the show-cause within 15 days from the date of receipt of the notice as to why they should not be removed from the services for the charges proved against them. Thus, it is clear from the proceedings referred to above that the first respondent clubbed the two enquiries at the stage of issuing the second show-cause notice and issued a common show-cause notice dated 18. 1983 with regard to the misconduct alleged in both the charge memos. Thereupon, after receiving the reply from the petitioner, the first respondent passed the impugned order removing the petitioner and another watchman Gurusamy from service. On a perusal of the show-cause notice dated 18. 1983 with regard to the misconduct alleged in both the charge memos. Thereupon, after receiving the reply from the petitioner, the first respondent passed the impugned order removing the petitioner and another watchman Gurusamy from service. On a perusal of the show-cause notice dated 18. 1983 and the impugned order it is clear that the punishment imposed by the first respondent on the petitioner by the impugned order is in respect of the misconduct alleged against the petitioner in both the charge memos dated 2. 1981 and 8. 1982. The impugned order is clearly illegal because the said order is passed clubbing the charges mentioned in the two separate charge memos dated 2. 1981 and 8. 1982 in respect of two separate incidents which took place on 28. 1980 and 37. 1982 respectively. The materials on record go to show that there are two different incidents. With regard to the two different incidents, two separate charge-memos were issued to the petitioner. The materials on records also go to show that two separate enquiries were also held with regard to the alleged misconduct referred to in the two separate charge-memos. Though the incidents were different separate charge memos were issued to the petitioner relating to the two incidents and separate enquiries were held with regard to the misconduct alleged in the two charge-memos, strangely the first respondent issued the show-cause notice dated 18. 1983 referring both the charge-memos, incidents and enquiries held in respect of those charges and proposed to impose a punishment of removal from service which ultimately led to the passing of the impugned order removing the petitioner from service. Thus, the procedure adopted by the respondent in passing the impugned order is clearly illegal and, therefore, the impugned order is liable to be quashed. .4. Another infirmity in the impugned order is that it was passed removing the petitioner from service ignoring the earlier show-cause notice issued on 8. 1981 proposing to impose the punishment of stoppage of increment for a period of one year without cumulative effect and to treat the period of suspension as leave to which the petitioner is eligible. Yet another infirmity in the order challenged in this writ petition pointed out by the learned counsel for the petitioner in this. 1981 proposing to impose the punishment of stoppage of increment for a period of one year without cumulative effect and to treat the period of suspension as leave to which the petitioner is eligible. Yet another infirmity in the order challenged in this writ petition pointed out by the learned counsel for the petitioner in this. The impugned order proceeds on the basis that during the enquiry conducted by the Superintending Engineer, Madurai Circle on 30.6.1983, the petitioner has admitted the charge that he has misbehaved and used abusive words against the superior officers. But, the report of the Superintending Engineer dated 17. 1983 does not support the above conclusion of the first respondent. Further, the impugned order does not show that the copy of the report of the enquiry officer either with regard to the first charge memo or with regard to the second charge memo was ever served on the petitioner along with the second show cause notice proposing the punishment. Even in the counter affidavit, there is no averment that the copy of the report of the enquiry officer was supplied to the petitioner along with the second show cause notice proposing the punishment. 5. For all the reasons stated above, I am inclined to hold that the infirmities in the impugned order noticed above are serious infirmities which would render the entire disciplinary proceedings initialed against the petitioner culminating in the order challenged in the writ petition illegal. Therefore, the impugned order is liable to be set aside. Accordingly, the writ petition is allowed, the order challenged in this writ petition is set aside and the respondents are directed to reinstate the petitioner in service. No costs.