Judgment : Petitioner has filed the W.P.No.14204 of 1991 seeking to issue a writ of certiorarified mandamus calling for the records relating to the order of the disciplinary Authority in his Reference No.009496/456/DF I/86-15 dated 11. 1987 as confirmed by the order of the Appellate Authority in Reference No. Permanent B.P. (Ch) No.91, Administrative Branch dated 2. 1989 and quash the same and consequently direct the respondent to reimburse the amount of Rs.27,000 already recovered with interest and costs. 2. The petitioner also filed W.P.No.10117 of 1992 seeking to issue a writ of certiorarified mandamus to call for the records relating to Memo No.086512/723/Admn.Br/C6-2/90-21 dated 212. 1990 as confirmed in the order dated 23. 1991 in Reference No.036629/328/Adm.Br/06(2)/91-1 dated 23. 1991 and quash the same and consequently direct the first respondent to include his name in the panel of names for promotion for the year 1990 above respondents 2 and 3. 3. In the affidavit filed in support of the W.P.No.14024 of 1991, the petitioner would reveal his case contending that he joined the respondent Board on 11. 1965 and rose to the position of Store-Keeper, Grade-I at Vellore Electricity Distribution circle, Ranipet, that he has put in 25 years of service, that while so, on 7. 1983 he sealed the godown and returned the next day afternoon, he found the seal was altered and tampered with the Aluminum Conductor Bits Kept at the Stores, that immediately he lodged a complaint to the Stores-officer and as per the directions of the Stores-Officer he weighted the Aluminum Bits kept at the godown and found a shortage of about 3756.5 kgs. and informed the same to the stores officer on 27. 1983; that based on which the stores-officer lodged a complaint with the local Inspector of Police regarding the missing of the Aluminium Bits valued at Rs.34,000. 4. The further case of the petitioner is that to his surprise he was issued with a memo dated 27. 1983 by the Stores-Officer calling for the explanation for the loss of the Aluminium conductor its and on 8. 1983 he submitted his explanation that not satisfied with this explanation, the respondent Board served him with a charge memo dated 4. 1984 on account of the loss of the said materials fixing the responsibilities with him. 1983 by the Stores-Officer calling for the explanation for the loss of the Aluminium conductor its and on 8. 1983 he submitted his explanation that not satisfied with this explanation, the respondent Board served him with a charge memo dated 4. 1984 on account of the loss of the said materials fixing the responsibilities with him. The petitioner would contend that the charge memo was issued by a person not competent to issue he same and hence the entire disciplinary proceeding gets vitiated that again on 14. 1984 he submitted his explanation for the charge memo rebutting the charges and assigning the reasons to the effect that he cannot be held responsible for the missing items, that thereafter an additional charge memo dated 7. 1984 was issued which is extracted hereunder: “Charge A: That the materials of AAC useful bits of 3756.5 kgs which was under his custody missed from stock only due to the slackness and carelessness of Thiru T.P.Krishnan, Store Keeper/I Grade then in charge of ‘C’ section. “Charge B: That he failed to make frequent periodical verification of the materials entrusted to him as per Boards instructions. Had frequent periodical verification been done, the loss could have been avoided (Standing Order No.19(ix). “Charge C: He has failed to maintain a tally register for the materials indicating the No. of coils their weigh source of receipt and date of receipt etc. as per Boards instructions issued from time to time, resulting in the list of materials (Standing Order No.19(ix). “Charge D: He has failed to provide tag to each consignment of coils received from other stores and taken into stock account by him and enter them properly in the tally register, resulting in the loss of materials (Standing Order No.29(ix). “Charge E: He has failed to properly maintain the yard materials register and failed to conduct daily verification of the materials stores in the outdoor yard daily resulting in the loss to the Board (Standing order No.19(ix). Charge F: He has failed to provide any protection markings, seals etc. on the materials kept in the yard to check up tampering and pilferage. Further he has not daily checked personally the materials stored in the outdoor yard resulting in the loss to the Board (Standing Order No.19(ix). Charge F: He has failed to provide any protection markings, seals etc. on the materials kept in the yard to check up tampering and pilferage. Further he has not daily checked personally the materials stored in the outdoor yard resulting in the loss to the Board (Standing Order No.19(ix). Charge G: Due to the slackness in duty and non-observance of precautionary measure, the Board has sustained a loss of Rs.87,846.20 (Rupees eighty seven thousand eight hundred and forty six and paise twenty only) being the value of the materials found short. For the above charges also the petitioner submitted his explanation dated 17. 1984 and 27. 1984 with an objection to the splitting of the charge; that not satisfied with this explanation an enquiry was ordered and conducted on 19. 1984; that in the enquiry charges ‘A’ and ‘G’ were held not proved and even the other charges ‘B’ ‘C’ ‘D’ ‘E’ and ‘F’ without any evidence worth mentioning have been held established; that thereafter on 211. 1984 the petitioner submitted his defence statement in consideration of which also the disciplinary authority differing with the findings relating to even charges ‘A’ and ‘G’ ultimately issued a show cause notice to explain as to why the penalty of recovery of the entire loss sustained by the Board amounting to Rs.87,846.20 should not be imposed on him and in spite of the request made by the petitioner seeking time to explain, nevertheless an order was passed on 11. 1987 confirming the recovery of loss amount from the petitioner. 5. The petitioner would further contend that he preferred an appeal against the order of penalty imposed by the Regional Chief Engineer (Distribution), Coimbatore before the first respondent and the appellate Authority also dismissed the appeal by an order dated 2. 1987 confirming the recovery of loss amount from the petitioner. 5. The petitioner would further contend that he preferred an appeal against the order of penalty imposed by the Regional Chief Engineer (Distribution), Coimbatore before the first respondent and the appellate Authority also dismissed the appeal by an order dated 2. 1989 without application of mind to the facts and circumstances of the case; that the enquiry officer held only charges ‘B’, ‘C’ and ‘E’ were proved; that the disciplinary Authority without valid reasons and without affording an opportunity to the petitioner, held charges ‘A’ and ‘G’ also proved; that the Appellate Authority without proper appreciation of the evidence and the materials placed on record confirmed the order of the disciplinary authority and hence the impugned order of the respondent ordering to recover Rs.87,846.20 is illegal, arbitrary and against the principles of natural justice and hence the petitioner would pray for the relief mentioned supra. 6. In the accompanying affidavit filed in support of W.P.No.10117 of 1992, the petitioner besides contending about his joining of the respondent-Board, as in the affidavit relating to the first writ petition would further contend that the respondent issued a revised seniority list on 1. 1991 wherein his seniority is No.50; that he is eligible for the promotion to the post of stores Supervisor since passed the departmental tests and he ought to have been promoted to the said post; but the respondent by an order dated 212. 1990 stated that his name was not approved for promotion; that he preferred an appeal to the Chairman on 12. 1991; that the said appeal was also dismissed on 23. 1991; that it is the Chief Engineer (Personnel) who had passed the final orders dated 212. 1990 without including his name in the panel for promotion and he himself has passed the order in the appeal to the Chairman of the Electricity Board in violation of the principles of natural justice and hence the petitioner would pray for the relief sought for mentioned supra. 7. In the counter filed on behalf of the respondents 1 to 3. 7. In the counter filed on behalf of the respondents 1 to 3. it would be contended that the promotion to the post of stores Supervisor is not effected only based on seniority; that as per Regulation 98(i) (b)(i) of the Tamil Nadu Electricity Board Employees’ Service Regulations, promotion shall be made on merit and ability, seniority being considered where merit and ability are approximately equal; that the petitioners name was not selected for the post of Stores-Supervisor in the panel approved on 212. 1990 since he was awarded with 3 punishments for serious lapses on his part, resulting in theft of materials worth about Rs.87,846.20 which are to be recovered from him in monthly instalments and the recovery will last upto April, 1998. 8. It would further be contended in the counter that the question whether a person undergoing a punishment of stoppage of increment should be promoted is purely a matter falling within the discretion of the authority concerned since a decision has to be taken with reference to the employees record of service, the specific charges for which the punishment had been inflicted, that since the petitioner was undergoing punishment for serious lapses, his name was not selected for promotion; that the appeal had been examined and rejected by the chairman himself after careful consideration and the order was communicated in Memo dated 23. 1991 as “By order of the Chairman”; that as per the Regulation stated supra, merit and ability that should be given priority and seniority that is claimed by the petitioner would be considered only where merit and ability are approximately equal; that the record of service of the petitioner was not good nor satisfactory in view of the punishment imposed on him and hence he was not selected for promotion by the competent authority. With such reasons the respondents would pray for dismissing the writ petition with costs. 9. With such reasons the respondents would pray for dismissing the writ petition with costs. 9. In the combined arguments advanced in both the above writ petitions, the learned counsel appearing for the petitioner would contend that W.P.No.14024 of 1991 was filed against the order of recovery of amount of Rs.87.846.20 and W.P.No.10117 of 1992 has been filed by the petitioner against denial of promotion to the next higher post, the Stores-Officer, that the petitioner joined the services of the respondent Board in 1965 as Commercial Assistant in 1965 and got promoted to the post of Store-keeper in 1979 and in February, 1985 he became the Store-keeper custodian Grade-I; that while he was serving as Store-Keeper at Udumalpet, a theft took place on 24. 1981 in the small godown located at a very small place wherein 1553 kgs. of Aluminium Conductor Bits were stolen away; that there were round the clock watchman posted; that the police on an earlier occasion wherein theft was committed in the same manner recovered a good portion of the quantity, but so far as this theft was concerned, the police have not recovered anything; that the petitioner when he returned to the work as usual in the next day afternoon, he saw some anomalies in the articles and lodged a complaint to the Authority; that on a oral instruction for 3756/kgs. of Aluminium Bits which were found missing, a complaint was lodged at Udumalpet police station. 10. Continuing to argue, the learned counsel would further contend that for not maintaining the Register, the petitioner was held responsible, that the enquiry officer exonerated him for slackness and coalescence of the charges ‘A’ and ‘G’ but the disciplinary authority found him guilty under those charges also; that for these charges having been held proved, no opportunity was afforded for him especially when the disciplinary authority disagreed with the enquiry report and punished the employee; that without an opportunity and without considering the explanation to the show cause notice submitted on the part of the petitioner, no punishment could be arrived at in law. At this juncture the learned counsel for the petitioner would cite the judgment reported in Punjab National Bank and others v. Kunjk Behari Misra Punjab National Bank and others v. Kunjk Behari Misra Punjab National Bank and others v. Kunjk Behari Misra , (1998)7 S.C.C. 84 , wherein it is held as follows: “Whenever the disciplinary authority disagrees with the enquiry authority on any article of charge. then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” 11. Citing the above judgment and pointing out that it is a case of clear out violation of principles of natural justice, the learned counsel would say that for lack of opportunity the whole proceeding gets vitiated and would pray for allowing W.P.No.14204 of 1991. The learned counsel would also pray for allowing the other Writ Petition No.10117 of 1992 also so far as it is concerned with the promotion of the petitioner. 12. On the part of the respondents, the learned counsel for the respondents would contend that for serious lapses committed on the part of the petitioner, he was rightly held guilty and the penalty of recovery from his salary was ordered and it had also been recovered; that a fair enquiry was held and conclusions were arrived at by the enquiry officer; that the petitioner had all his opportunities to make any representation and if he did not avail the same, it is not that the respondent should be blamed and hence would pray for dismissing the writ petition with costs. 13. 13. In consideration of the facts and circumstances as brought for by the petitioner and the respondents as well through pleadings and in further consideration of the materials placed on record and upon hearing the arguments of the learned counsel for both, what comes to be known is that the petitioner while serving in the respondent-Board at the Udumalpet Branch as a Store-keeper, there had been a theft in between 7. 1983 and 7. 1983 and the petitioner at 1 p.m. on 7. 1983 came to know that there had been some anomalies and tampering in the Aluminium Conductor Bits kept at the Stores and besides bringing the same to the notice of the Store-Keeper, the next higher authority to the petitioner, he had also weighed the remaining Aluminium Bits and found the missing of 3756.5 Kgs. and he kept the Stores-Officer informed of the same; that based on his information, a Police complaint was lodged, but nothing was recovered nor came to be detected regarding the theft of the articles. Hence the disciplinary authority instituted an enquiry on the charges ‘A’ to ‘G’ and though the Enquiry Officer arrived at the conclusion, finding the petitioner not guilty on the charges ‘A” and ‘G’ the disciplinary authority on going through the enquiry report held the petitioner guilty of those two charges also and ultimately inflicted the penalty ordering to recover the amount of Rs.87,846.20 from the salary of the petitioner as per his order dated 11. 1987. .14. The petitioners grievance is that though the disciplinary authority is within his powers to arrive at his own conclusions as against the finding of the enquiry officer still, he should have issued a show cause notice to the petitioner thereby expressing his decision arrived at as against the findings of the enquiry officer and with sufficient opportunity for the petitioner to be heard on that aspect and after going through the explanations submitted on the part of the petitioner and in consideration of the same, the disciplinary authority should have arrived at his conclusions. But in this case, no such opportunity seems to have been afforded by the disciplinary authority not is it claimed on the part of the respondent that such an opportunity had been afforded to the petitioner to explain and hence it is the strong case of the petitioner that there is violation of the principles of natural justice and in such event, the entire proceedings initiated and concluded becomes vitiated. 15. Learned counsel for the petitioner would cited the Judgment reported in Punjab National Bank and others v. Kunjk Beharai Misra , (1998)7 S.C.C. 84 , wherein similar set of facts, the Apex Court has held that whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its finding. The principles of natural justice require the authority which has to take a final decision and can impose a penalty to give an opportunity to the officer in charge of mis-conduct. This court is in perfect agreement with the said proposition of law propounded by the Apex Court on the subject matter and holds that it is a case of lack of opportunity so far as that part of the procedure that has not been complied with by the disciplinary authority in disagreeing with the Enquiry Officers finding regarding those two specific charges are concerned as held by the Apex Court in the judgment cited above. 16. At the same time, as held by the same Apex Court in very many other judgments on account of such inconsistencies or non-compliance of the procedural law resulting in violation of the principles of natural justice, such violation will not lead to vitiate the whole proceedings initiated against the petitioner and it is desirable to remand the matter to the same authority for compliance of such procedures and decide the matter giving such opportunity for the petitioner to be heard. .17. .17. Though it is not the petitioner who alone could be accused of having been slack or careless in his duties and responsibilities, still, so far as his onerous responsibilities such as, maintenance of stock register up-to-date, making frequent and periodical verification of the materials entrusted to him, maintaining a tally register providing tag to each consignment of coils received from other stores and taken into stock account by him and entering them properly in the tally register, maintaining the yard materials register, providing the protection markings, seals, etc. on the materials kept in the year to check up tampering and pilferage as a store keeper is bound to maintain and carry out as per the rules, regulations and instructions issued to him from time to time with which the petitioner has informed in gross negligence as a result of which, neither the authorities concerned, nor even the police who registered the criminal case regarding the theft of the said items, were able to find out as to when and in what manner the theft had taken place as it comes to be known from a over all study of the entire case and hence this court is of the view that for the only reason that the disciplinary authority, prior to inflicting the penalty of charges ‘A’ and ‘G’ differing from the disciplinary did not give an opportunity for the petitioner to explain his conduct in consideration of which, the order should have been passed, the whole proceeding cannot vitiate and hence, it is just and proper to direct the disciplinary authority to afford the petitioner with such an opportunity and on hearing his explanations and other submissions to decide the question of penalty. In this regard, it should further be borne in mind that this inconsistency or non compliance of the procedure is attributed only for the charges ‘A’ and ‘G’ There are other charges which were held proved by the enquiry officer and concurred by the disciplinary authority based on which also the penalty was arrived at in a comprehensive and hence it is not prudent to say the whole proceeding would get vitiated on account of the procedural failure that had taken place regarding the two charges alone. 18. 18. For the foregoing reasons, it is hereby decided that it is a matter to be remanded back to the disciplinary authority for compliance of the procedures that he failed to comply with and to pass his orders. 19. Sofar as the other W.P.No.10117 of 1992 is concerned, a cursory glance into the order dated 212. 1990 would reveal that the petitioners name is shown in the 8th place and and it is the case of the petitioner that he is senior to the second and third respondents named in the writ petition and that he was not given his promotion as per the panel prepared and published in the order dated 212. 1990 is sought to be quashed and in spite of appeal preferred to the chairman, Electricity Board, the same got rejected as per the order dated 23. 1991 second referred to in the prayer and the order is a one sentence order without revealing anything regarding the materials which have been considered by the Appellate Authority so as to arrive at the conclusion to reject the appeal preferred by the petitioner. This Court has time and again held that in such matters either the competent authority or the Appellate Authority is required to pass a speaking order in due consideration of the facts and circumstances encircling the whole matter and in proper appreciation of the materials placed on record and assigning valid and tangible reasons for the conclusions arrived at in due application of mind. From the one sentence order passed under the guise of by order of the Chairman cannot be legally taken as an order either valid or binding on the petitioner and the non-speaking order is non est in law and hence necessarily the said order has to be set aside. 21. From the one sentence order passed under the guise of by order of the Chairman cannot be legally taken as an order either valid or binding on the petitioner and the non-speaking order is non est in law and hence necessarily the said order has to be set aside. 21. It is the further case of the respondent that only on account of the recovery ordered against the petitioner which is the subject matter of W.P.No.14204 of 1991, the above history sheet became either tainted or tarnished and since the said writ petition has been ordered to be remanded to the disciplinary authority for compliance of certain procedures which he failed to comply with unless a valid and ultimate decision is taken in the disciplinary proceeding, the remarks offered in the history sheet of the petitioner based on the delinquency committed by him which is the subject matter of the very disciplinary proceedings itself, no order could be passed in the above writ petition as it is sought for by the petitioner excepting to quash the order passed by the appellate authority as per his proceedings in memo. N.036629/328/Adm.Br./06(2)/91-1, dated 23. 1991 which is hereby quashed and this matter is also remitted back to the same Appellate Authority for reconsideration with fresh opportunity for the petitioner to be heard and to pass a speaking order as required in law. No further orders could be passed in this writ petition also. 22. In result, both the writ petitions are disposed of subject to the above directions and remarks. 23. Consequently, W.M.P. No.21362 of 1991 is closed. No costs.