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1993 DIGILAW 155 (MAD)

P. J. Vincent v. Tamil Nadu Electricity Board

1993-03-08

JANARTHANAM

body1993
Judgment :- The petitioner J. Vincent, it is said, was functioning as Assistant Divisional Engineer in the services of the Tamil Nadu Electricity Board (respondent 1). While so functioning, he was served with a Memo No. SE/RE/ST/Confl. 20/82, dated June 30, 1982 issued by the Superintending Engineer/Rural Electrification, Madras, for initiation of disciplinary proceedings cataloguing various charges framed against him. Likewise the Superintending Engineer, Chengalpattu Electricity System, Kancheepuram, served a memo No. Sec/Adm.2/JA.1/DP.PR/448/83 dated April 5, 1983 on him cataloguing various charges. 2. Two sets of charges, if proved are liable to be vitiated with penalty of removal or dismissal from service as stated above, were inquired into by the Chief Engineer (Personnel), Tamil Nadu Electricity Board, Madras-600 002 (respondent 2) and after the conclusion of the inquiry, he submitted a report to respondent-1 Board holding the petitioner guilty of certain grave charges, though in respect of certain other charges he held as not proved. 3. Respondent 1 (Board) even without furnishing copy of the inquiry report to the delinquent petitioner, dismissed him from service, accepting the findings of the Inquiring Officer by order in B.P.Ms. (FB) No. 1 (Administrative Branch) dated January 20, 1984. The operative portion of the order of the Board is couched in the following terms : "The Tamil Nadu Elecy. Board after careful consideration of the case with the connected records, comes to the conclusion that he may be dismissed from the service of the Board. Accordingly, the Tamil Nadu Electricity Board hereby directs that Thiru P. J. Vincent, Assistant Civil Engineer/Electrical be dismissed from the service of the Board from 28.12.1982 FN, i.e., the date from which he has been continuously absent from duty unauthorisedly. 13. He is directed to acknowledge receipt of this Board Proceedings."* This order of the Board was stated to have been signed by respondent 2, Chief Engineer/Personnel (Inquiry Officer) by order of the Board, respondent 1, and thereafter communicated to the petitioner. The petitioner, aggrieved by the said order resorted to the present action praying for issue of a writ of Certiorarified Mandamus to quash the said order and direct the respondents to reinstate him in service with full backwages and attendant benefits therefor. 4. The petitioner, aggrieved by the said order resorted to the present action praying for issue of a writ of Certiorarified Mandamus to quash the said order and direct the respondents to reinstate him in service with full backwages and attendant benefits therefor. 4. Learned counsel appearing for the petitioner would raise two contentions :- (1) Neither the Superintending Engineer/Rural Electrification, Madras, who issued the first set of charges, not the Superintending Engineer, Chengalpattu Electricity System, Kancheepuram, who issued the second set of charges, to the delinquent petitioner, in their respective memos, nor respondent 2 Chief Engineer/Personnel, Tamil Nadu Electricity Board, Madras-600 002. Inquiry Officer had been authorised by respondent 1 Board either for framing of charges or for holding an inquiry the various steps in the initiation of the disciplinary proceedings as against the delinquent petitioner and consequently such initiation of the disciplinary proceedings by such incompetent authorities vitiated the entirety of the proceedings and therefore, the impugned proceedings are liable to be quashed. (II) The non-furnishing of the copy of the inquiry report to the delinquent petitioner before the final order of dismissing him from service by the Board was passed would tantamount to violating the principles of natural justice, in the sense of his not having been given adequacy of opportunity to rebut the findings of the Inquiry Officer and on this ground also, the impugned order is liable to be quashed. 5. Learned counsel appearing for the respondents would however admit that there was no authorisation by respondent 1 Board either to the Superintending Engineer/Rural Electrification Madras or to the Superintending Engineer, Chengalpattu Electricity System, Kancheepuram, to frame charges against the delinquent petitioner by serving memos, nor was there any authorisation to respondent 2 Chief Engineer/Personnel by the Board to hold an enquiry into the various charges as framed against him by the aforesaid officers. But none-the-less, he would say that the impugned order is not at all liable to be quashed. 6. Regulation No. 6 of Tamil Nadu Electricity Board Employees Discipline and Appeal Regulations (for short 'Regulations') prescribes authorities who may impose penalties on various classes and categories of employees of the Board. The employees of the Board under these Regulations had been classified into four classes. The Assistant Divisional Engineer like the petitioner is an officer under class II (c). Regulation No. 6 of Tamil Nadu Electricity Board Employees Discipline and Appeal Regulations (for short 'Regulations') prescribes authorities who may impose penalties on various classes and categories of employees of the Board. The employees of the Board under these Regulations had been classified into four classes. The Assistant Divisional Engineer like the petitioner is an officer under class II (c). For such an officer, the competent authority who can inflict the punishment of dismissal from service is the Board. If the authority imposing the punishment happens to be the Board, there is no further appeal to the Appellate Authority, the reason being the Board itself is the Appellate Authority. In all those cases, where punishment is imposed by any authority other than the Board, it is appealable to the appellate authority, namely the Board. Regulation 8(f) prescribes that the competent authority may authorise any officer in Class I or Class II service superior in rank to the employee to initiate departmental proceedings and to hold enquiry against the employee. On the findings of that officer, the competent authority may award punishment or otherwise give a decision. On the face of Regulation 8(f), it goes without saying that the initiation of the departmental proceedings and holding of enquiry thereof against any employee by any officer in Class I or Class II are not permissible except authorised by the competent authority. There is no pale of controversy that no authorisation had been issued by respondent-1 Board for initiation of departmental proceedings and holding of an inquiry against the petitioner delinquent, who is a Class II officer, either to the Superintending Engineer/Rural Electrification, Madras or to the Superintending Engineer, Chengalpattu Electricity System, Kancheepuram or to the Chief Engineer (Inquiry Officer respondent 2). As such, the initation of the disciplinary proceedings and holding of inquiry as against the deliquent petitioner by all those authorities, as stated above, is not warranted by any of the provisions adumbrated under the Regulation. In this view of the matter, to say that the initiation of the disciplinary proceedings by the incompetent authorities is not vitiating the entirety of the proceedings cannot at all be countenanced, the consequence of which is that there is no other go for this court, except to quash the impugned proceedings, on this ground alone. 7. In this view of the matter, to say that the initiation of the disciplinary proceedings by the incompetent authorities is not vitiating the entirety of the proceedings cannot at all be countenanced, the consequence of which is that there is no other go for this court, except to quash the impugned proceedings, on this ground alone. 7. As respects the submission revolving on the question of non-furnishing of the inquiry report of respondent 2 Inquiry Officer to the delinquent petitioner, learned counsel for the petitioner placed implicit reliance upon the decision of the Supreme Court in Union of India v. Mohd. Ramzan Khan 1991-I-LLJ-29. The Bench of the Apex Court consisting of their Lordships Ranganath Misra, C.J., P. B. Sawant and K. Ramaswamy, JJ. in a scintillating fashion, expressed their views on a similar question now posed in the case on hand in paragraphs 15 and 17. 15. Deletion of the second opportunity from the scheme of Art. 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the inquiry officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this court making rules of natural justice applicable to such an inquiry are not affected by the 42nd Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the deliquent would, therefore, be entitled to the supply of a copy thereof. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the deliquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position. 16. ................ 17. There have been several decisions in different High Courts which, following the Forty-Second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to deliquent officers. Even on some occasions this court has taken that view. Since we have reached a different conclusion the judgements in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger Bench of this court taking this view. Therefore, the conclusion to the contrary reached by any two judge Bench in this court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground. "8. Learned counsel for the respondents would however submit that the ratio, as laid down by the Supreme Court in the aforesaid decision, is not at all applicable to the facts of the instant case, inasmuch as the punishment on the delinquent petitioner had been imposed long before the judgement of the Supreme Court, which came into existence only on November 20, 1990. No doubt, this argument of learned counsel for the respondents is built upon the last portion of the sentence in paragraph 17, namely,"* but this shall have prospective application and no punishment imposed shall be open to challenge on this ground." To this interpretation, as put by learned counsel for the respondents on the aforesaid portion of the judgement of the Supreme Court, I am unable to affix my seal of approval. What perhaps Their Lordships of the Supreme Court wanted to convey by the phraseology employed therein was that the punishment imposed on a delinquent employee once and for all concluded and set at rest is not liable to challenge by reference to writ proceedings subsequent to their decision. What perhaps Their Lordships of the Supreme Court wanted to convey by the phraseology employed therein was that the punishment imposed on a delinquent employee once and for all concluded and set at rest is not liable to challenge by reference to writ proceedings subsequent to their decision. If such an arrangement is thrown open to challenge, it is nothing but opening of a Pandoras's box, thereby making no end to litigations. 9. Since the petitioner had been removed from service by order dated January 1, 1984 with retrospective effect from December 28, 1982 and the same thing had been agitated further by resortment to the present action, it cannot be stated that the ratio of the decision of the Supreme Court is not at all applicable. 10. For the reasons as stated above, it goes without saying that this writ petition deserves to be allowed and the same is accordingly allowed as prayed for. Rule Nisi issued is made absolute. There will, however, be no order as to costs, in the circumstances of the case.